Some unconstitutional regulations are like zombies: A court can put them down only to see them shamble back to life.
In a recent order, the Federal Communications Commission has resurrected a policy that many assumed was dead. From the 1980s until 1998, the FCC required television and radio broadcasters to classify all station employees, both full-time and part-time, by race or ethnicity and gender. These regulations pressured broadcasters to maintain a diverse workforce by threatening their licenses if they failed to reflect the right demographics. But in 1998, following Supreme Court decisions striking down other race-conscious government policies, the District of Columbia Circuit Court of Appeals struck down the FCC’s program as unconstitutional.
Following that decision, the FCC let the policy lie. For almost 30 years, broadcasters haven’t been required to survey and report on the race and ethnicity of their employees. But now, like the undead, this policy has risen again — and in a form even worse than before. In its new incarnation, the FCC will not only require broadcasters to report this information but also post it online for the world to see, effectively producing a racial scorecard for every broadcaster in the country.
The FCC’s new rule is just as, if not more, unconstitutional than the policy the court previously struck down. Of course, to comply with the D.C. Circuit’s decision, the FCC promises (cross its heart) that the racial scorecard it collects will not be used against broadcasters in the licensing process. But this promise is empty. If the data truly have no bearing on the regulatory process, why collect data at all? And what statutory authority does the agency have to collect data for mere informational purposes?
Plus, the mere act of collecting and publishing this information creates an implicit pressure on broadcasters, lest they face public scrutiny or unofficial repercussions. This informal coercion is, in many ways, worse than the formal pressure struck down in 1998; at least a quota could be satisfied. Reputational damage can never be fixed. And there is little doubt that this is the FCC’s not-so-secret intention.
Even if the FCC fixed the equal protection problems, its new policy to publish these reports online violates broadcasters’ free speech and employee privacy. Under the policy, broadcasters must classify each of their employees into one of six racial buckets; as the FCC’s form states, “Minority group information necessary for this section may be obtained either by visual surveys of the work force, or from post-employment records as to the identity of employees. An employee may be included in the minority group to which she or he appears to belong.”
Accordingly, it doesn’t matter how an employee self-identifies or whether he wishes to be classified at all. The broadcaster must make a determination, based on appearance if necessary, forcing employers to engage in racial profiling and potentially misclassify employees against their will. This practice not only infringes on individual privacy rights but also compels broadcasters to express a government-mandated message about their employees’ racial identities, regardless of the accuracy or appropriateness of such classifications.
This seems especially absurd in today’s era, where our understanding of race and ethnicity is increasingly nuanced and fluid. Many individuals may not fit neatly into the FCC’s predetermined categories or may identify differently than their outward appearance suggests. Employers may not feel comfortable trying to look at their employees’ skin color in order to attempt to place them into one of six artificial buckets.
These artificial categories the FCC is seeking to entrench are the same categories the Supreme Court recently called “incoherent” and the cause of “irrational stereotypes.” Humanity cannot be usefully divided into six groups based on skin color. Entrenching these divisions into public consciousness only further divides us. And by publicly posting these reports for all to see, the FCC is enlisting employers in its societal balkanization efforts, while allowing the entire world to scrutinize them on their compliance with the “right” racial ratios.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
The FCC’s rule is rife with legal flaws. Thus, it is no surprise that the policy has come under vigorous attack. My law firm, the Pacific Legal Foundation, represents theDove Media, a nonprofit corporation dedicated to Christian broadcasting and a licensee of a handful of small radio stations and low-power TV stations in Oregon. TheDove sees the many problems with the FCC’s order and, with PLF’s help, has filed suit to have it overturned. This lawsuit has joined several other lawsuits filed by various parties. All of these cases are currently pending before the 5th U.S. Circuit Court of Appeals.
The FCC’s zombie order must meet the same fate it met the first time. Hopefully, the federal courts will oblige.
Wilson Freeman is an attorney at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberty against government overreach and abuse.