• by Wendy Davis , Yesterday

Free speech watchdogs are blasting the Federal Communications Commission over its "egregiously unconstitutional" investigation into whether ABC's "The View" violated the so-called "equal time" rule.

"Any law professor would struggle to devise a fact pattern so egregiously unconstitutional as the FCC’s crackdown on The View and other television talk shows disfavored by this administration," groups including TechFreedom, The Authors Guild and Public Knowledge, as well as dozens of academics said in comments submitted to the agency this week.

"The veneer of legal process applied over the Commission’s retaliation against speech disfavored by this administration is so thin that it is nearly invisible," the groups add.

Their filing comes several months after the FCC launched an investigation into whether an interview on "The View" with Texas State Rep. James Talarico, then seeking the Democratic nomination for U.S. Senate, violated the rule.

The equal time rule broadly says broadcasters that give free air time to "legally qualified" candidates must also offer their rivals an opportunity for free air time. But that rule has exceptions for "bona fide" newscasts, interviews and documentaries, and in 2002 the FCC's Media Bureau said "The View" qualified for that exception.

That 24-year-old ruling in favor of "The View" was hardly the first time the FCC granted exceptions to talk shows: Since at least 1984, the agency has said such programs -- including "The Phil Donahue Show," "The Jerry Springer Show," “The Howard Stern Show” and "The Tonight Show With Jay Leno" -- qualify for the exemption.

In January, however, the FCC said in new guidance that decisions regarding exceptions are "fact specific," and suggested that broadcasters should ask the agency's Media Bureau to determine in advance whether particular programs are exempt from the equal time rule.

At the time, Chairman Brendan Carr said the agency's approach would "apply the law in a fair and even-handed manner," but added: "If you're fake news, you're not going to qualify as the bona fide news exception."

Some conservative groups, including the Media Research Center, cheered the FCC's move. That group claimed in a filing with the agency that "The View" is "a partisan political operation that advocates for Democrats and their party, against President Donald Trump and Congressional Republicans, and for the political priorities of the left."

In May, ABC petitioned the FCC to declare that the "The View" is exempt because it's a bona fide news interview program, arguing that there is no basis to overturn the 2002 ruling.

The broadcaster added that applying the rule to "The View" would raise First Amendment concerns.

"By forcing broadcasters to air all qualified candidates without regard to their newsworthiness, the rule squelches editorial discretion," ABC wrote in its petition.

TechFreedom, The Authors Guild and others argue that the FCC should both grant ABC's petition and also rescind the January guidance encouraging broadcasters to seek advance rulings about particular shows.

"This FCC has often been accused of jawboning, or using coercive pressure to reshape speech in ways the law itself does not allow," the groups write, obviously referring to incidents such as Carr's attempt to pressure ABC to pull Jimmy Kimmel from the air.

"Effectively requiring these declaratory rulings builds jawboning into the administrative process by default. Everyone who files an application will know exactly what the Commission expects: a record of interviewing more candidates Carr and President Trump like and fewer candidates they dislike."