Trump v. Colbert: A Discussion on the Administration’s Censorship of CBS and its Affiliates

by Jack Frischen, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

The federal government is setting dangerous precedent in its regulation of free speech. It’s aggressive attacks on CBS Broadcasting, Inc. (“CBS”) are not simply a response to lower ratings as some try to suggest; they are calculated forms of censorship that are being disproportionately applied to sources that do not share the President’s ideals. While some more conservative sources are seemingly allowed to ignore the rule requiring stations to provide comparable airtime to opposing candidates for the same office known as Equal Time Rule, the more liberal leaning The Late Show with Stephen Colbert was forced to cut an interview by the Federal Communications Commission (“FCC”). This is but one of many attacks on the network by the Federal Government, ultimately forcing CBS and its executives to bend the knee to the Trump Administration. Sources have continued to push the narrative that The Late Show was hemorrhaging tens of millions of dollars a year which led to its cancellation, but this still leaves many unanswered questions about broader treatment of CBS and other similar media conglomerates.

While Part I of this Article introduces the reader to the CBS censorship issue, Part II provides background on the Equal Time Rule, and other forms of recent government intervention on CBS. Part III then discusses how the intervention in The Late Show segments and CBS business dealings, as well as President Trump’s private citizen suits against CBS and others, amounts to censorship of the entire network and, by extension, the American people. Part III then argues that today’s market may not require, or even encourage, the FCC’s enforcement of the Equal Time Rule. Part IV then concludes by recapping the Article’s main point, that the federal government’s intervention in CBS amounts to censorship that directly contradicts the First Amendment’s guarantees of free speech and press.

II. Background

Before discussing the effects of censoring CBS, it is crucial to first understand the mechanism that the government used to restrict The Late Show, as well as the other forms of intervention that, together, amount to censorship of the network as a whole. The First Amendment provides that “Congress shall make no law… abridging the freedom of speech, or of the press.”¹ Additionally, the Supreme Court has found that the chief purpose of this guarantee is to prevent prior restraints upon publication.² Citing Blackstone, the Court further held that “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.”³ Historically though, the government has still been able to find constitutional ways to limit the press’s ability to reinforce only one particularized message. This Section will explore multiple examples of this, some of which are still in effect. First, this Section breaks down the Equal Time Rule by considering both its historic use and the historic exceptions to the rule. Following this, a brief history of the Fairness Doctrine and its ultimate repeal. Finally, this Section looks at the other forms of intervention that the federal government has enforced on CBS and its affiliates as well as other networks.

A. The Equal Time Rule and its Historical Exceptions

The Equal Time Rule, codified under section 315 of the Communications Act of 1934 (the “Act”), requires broadcast licensees that air content featuring a qualified candidate for any particular public office to give equal time to all other candidates running for that office.⁴ The Act further exempts several sources from this rule including, “(1) bona fide newscast[s], bona fide news interview[s], bona fide documentar[ies]…, or on-the-spot coverage of bona fide news events.”⁵ Concerning restrictions of speech and press under the Communications Act, section 326 states that “[n]othing in this Act shall be understood or construed to give the Commission the power of censorship.”⁶

In the past, the FCC has found that talk shows qualify as bona fide news interviews and are therefore exempt from the Equal Time Rule.⁷ In 2006, the FCC applied this reasoning to The Tonight Show with Jay Leno when he gave Republican Candidate for California Governor Arnold Schwarzenegger airtime but not to Democrat Candidate Phil Angelides.⁸ Other shows such as Donahue, Sally Jessy Raphael Show, Jerry Springer, and Howard Stern’s radio show have received the same exemption.⁹ Now, the FCC is changing course from this precedent. In a public notice issued on January 21, 2025, the Commission state that “the FCC has not been presented with any evidence that the interview portion of any late night or daytime television talk show program on air presently would qualify.”¹⁰ Whatever the reason behind the recent change in policy, historically, shows just like The Late Show (and likely The Late Show itself) have been exempt from the Equal Time rule.

B. The Fairness Doctrine

The Fairness Doctrine, now repealed, was very similar in function and form to the Equal Time Rule. Backed by Congress in 1954 and enforced by the FCC, the Fairness Doctrine mandated that broadcasting networks–at the time primarily NBC, ABC, and CBS–devote airtime for contrasting views about issues of public importance.¹¹ In a unanimous decision in 1969, the Supreme Court upheld the doctrine in Red Lion Broadcasting Co. v. FCC.¹² The doctrine remained in effect until it was repealed by the Reagan Administration in 1987.¹³ Under new chairman Dennis Patrick, the FCC panel in a 4-0 vote repealed the doctrine finding that it violated the First Amendment right to free speech.¹⁴ Congress opposed this and in June of the same year attempted to codify the doctrine into law under the Fairness in Broadcasting Act of 1987.¹⁵

Although the bill passed both houses of Congress, President Reagan vetoed the bill and Congress was unable to convene the votes to overturn the veto.¹⁶ In his veto of the proposed bill, President Reagan rooted his argument both in terms of encouraging free speech as well as a reduced need for a doctrine following the increase in total media outlets.¹⁷ Specifically, President Reagan stated that “[i]t may now be fairly concluded that the growth in the number of available outlets does indeed outweigh whatever justifications may have seemed to exist at the period during which the doctrine was developed.”¹⁸ For better or for worse, media outlets no longer had to concern themselves with presenting equal viewpoints on issues of public importance.

C. Federal Intervention of CBS and Other Networks

In recent news, the Federal Government has taken several steps to intervene in CBS’s business dealings and its ability to broadcast. Most recently, the FCC threatened to trigger the Equal Time rule in Response to a The Late Showinterview with Democratic Senate Candidate James Talarico.¹⁹ This ultimately forced CBS not to broadcast the interview, leaving the network limited options for sharing its message.²⁰ While the network was able to share the interview on its YouTube channel because the rule does not apply to the internet, this marked the end of the traditional understanding that talk shows were exempt from the Equal Time rule.²¹ Before this incident, CBS had already decided to cancel The Late Show, giving it one final season, and explaining that it was “purely a financial decision.”²² Now, as Watch What Happens Live host Andy Cohen put it, CBS is “turning of the lights after the news,” because it will be the end of new broadcasting each night.²³

Furthermore, following a 60 Minutes interview with Vice President Kamala Harris in October of 2024, President Trump filed suit against CBS and its owner Paramount Global claiming to have suffered “mental anguish” over the way CBS edited the interview.²⁴ Although CBS claimed the case was “completely without merit,” it ultimately settled, agreeing to pay $16 Million to President Trump’s future presidential library.²⁵ While this case was ongoing, Paramount was in the middle of a pending sale to Skydance Media, which required the Trump administration’s approval.²⁶ Referring to it as a “big fat bribe,” critics, such as The Late Show host Stephen Colbert, believe the primary purpose of this settlement was to further encourage the Skydance sale.²⁷ All of this was, of course, accompanied by President Trump’s characteristically outspoken views about the network, Stephen Colbert, and several other media outlets.²⁸ As he continues to attack through legal means, President Trump further pushes a disparaging message about media outlets, including CBS, through his usual means of communicating to the public such as social media.²⁹

CBS is not the only media company dealing with these excessive interventions either. While nothing is finalized yet, a merger between Warner Bros Discovery and Paramount Skydance is currently ongoing.³⁰ The current CEO of Skydance, David Ellison, as well as his billionaire father Larry Ellison, have a close relationship with President Trump, making it likely that the merger (which requires federal approval) will go through.³¹

This merger was only made possible after Netflix CEO, Ted Sarandos, dropped its bid for Warner Bros after a closed door meeting with top Trump administration aides.³² While it is impossible to know what was said in this meeting, it seems very likely that President Trump had a role in how this has all unfolded.³³ While on its face this may not seem like an intervention in the press, Warner Bros is the parent company of CNN, the network President Trump has long feuded with over its coverage of him.³⁴ Just as CBS has adjusted to Trump-friendlier news coverage, the same is almost certain to happen to CNN.³⁵

Before any of this, President Trump made similar attacks on Disney-owned ABC news.³⁶ In 2024, President Trump secured a $15 million settlement against the Company, stemming from ABC News Anchor George Stephanopoulous’ improper statement that President Trump had been held civilly liable for rape.³⁷ While conversationally the President’s actions did can be considered rape, under New York law he was only found liable for sexual abuse.³⁸ This all too follows a long public battle between ABC and President Trump, with him repeatedly calling for anchors to be fired and the network to lose its license.³⁹

III. Discussion

While there are seemingly many reasons why CBS and the Federal government have made the decisions they’ve made, the culmination of the events points towards this being an explicit and intentional censorship of one of the United States’s oldest networks. This Section first argues that while the events described in the Background above may be legal on their face, they are actually a combination of attacks to limit CBS’s ability to broadcast views that compete with the current administration. Then, this Section looks at the justification behind ending the Fairness Doctrine and how similar justifications now exist in terminating enforcement of the Equal Time Rule. Throughout this Section, the discussion will pay close attention to the other potential reasons behind some of the decisions explained above but ultimately supports the claim that those explanations are pretextual to the censorship of CBS.

A. CBS Censorship

The above Section describes several events that paint only a small picture of the current administration’s censorship of media outlets. First, consider the FCC’s threats to trigger the Equal Time rule in response to Senate Candidate Talarico’s interview.⁴⁰ Even after the FCC found that The Tonight Show with Jay Leno was exempt from the rule, a virtually identical show in format and content, the administration now reverses this precedent, while only applying it to this specific interview and not similar shows with conservative leanings.⁴¹ This threat was not only a direct reversal of the settled understanding of the rule; it was also a clear response to Talarico’s consistent criticism of President Trump.

While this alone can be seen as a more appropriate and proper understanding of the Equal Time rule, consider again the ongoing involvement of the Trump administration in the dealings of CBS. President Trump has simultaneously secured $16 Million from the Company through a lawsuit attacking 60 Minutes and essentially brokered the merger of Paramount Global/CBS and Skydance, whose CEO maintains an ongoing business relationship with President Trump, at the same time.⁴² In addition to this, CBS had already cancelled The Late Show without giving Colbert the chance to lower costs, even though it was the top performer within its time slot, following repeated attacks from President Trump and his administration.⁴³ While individually, the invocation of the Equal Time rule, CBS’s cancellation of The Late Show, President Trump’s 60 Minutes lawsuit, and his constant anti-media sentiment may not amount to censorship, together, they have all but silenced CBS, setting it up to be a puppet of the Trump administration.

Further, CBS is not the only media conglomerate that President Trump has taken excessive measures to try and silence. Consider again the Skydance merger with Warner Bros and the federal government’s excessive involvement in both the dealings and eventually its acceptance.⁴⁴ Given the Trump Administration’s excessive involvement in previous deals, it is likely that President Trump had involvement in severing the deal between Warner Bros and Netflix in favor of his friend’s company, Skydance.⁴⁵ By ensuring Warner Bros’ new owner is a friend of his who shares his ideals, President Trump all but guarantees the end of any adverse coverage from a Warner Bros subsidiary, including CNN, one of his longstanding critics.

All of this coupled with similar attacks on ABC, another network the President has made clear he feels is biased and unfair to him, first, by suing them essentially over semantics, and second in his repeated calls for ABC to lose their license and its reporters to be fired.⁴⁶ President Trump has made clear and unequivocal attacks on the media outlets who negatively report on him, while supporting those more favorable to him, exemplified by the pending Skydance merger with Warner Bros. This is especially glaring because no such attacks have happened on any conservative media outlets. Sources like Fox News, Newsmax, and The Daily Wire, do not fear federal censorship because they are further pushing President Trump’s messaging and he has no reason to challenge their coverage. While the President concerns himself greatly whether the media is fair or not, he does not extend the same level of scrutiny to the sources with which he agrees.

B. Today’s Market May Not Require Equal Time Enforcement

Media outlets have become increasingly common, with significantly less people getting their information from cable broadcasting. Just as President Reagan justified the end of the Fairness Doctrine due to an increase in media outlets and fears of First Amendment restrictions, the change in media as we know it has justified the end of the Equal Time Rule. People now primarily get their news from the internet, while outlets that are still subject to the Equal Time rule have their speech censored simply for the source of their media. While internet sources can push one candidate over any other, the outlets already hemorrhaging consumers must continue to comply with this antiquated law. For the same reasons President Reagan justified the rejection of the Fairness Doctrine, the increase in media outlets has justified the rejection of the Equal Time Rule.

IV. Conclusion

While Government officials and the CBS executives that bend the knee to them would argue that the events described in the above sections are proper business decisions, the evidence points to this being clear and intentional censorship. As it stands, there is a “proper” explanation behind every one of these decisions, but these are clearly pretextual to the actual reason, limiting the speech of the current administration’s critics. These attacks have come in multiple forms over the last year, but they all serve the same purpose. Through the FCC, involvement in CBS’s business dealings, public ridicule, and President Trump’s private citizen suit, the administration has effectively bullied CBS into submission. This could have incredibly dire effects on broadcasting and First Amendment rights as we know them. If this administration is truly as anti-censorship as it claims to be, it must halt its enforcement of the Equal Time Rule and allow broadcasting networks to make their own financial decisions, starting with CBS.

Cover Photo by Victor Pot on Unsplash

Jack Frischen

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