It has done so before, and so long as it retains its power, it will do it again.

‘W e can do this the easy way or the hard way,” Federal Communications Commission Chairman Brendan Carr said on a podcast on Wednesday in an attempt to bully Jimmy Kimmel off the air for his false statements about Charlie Kirk’s murderer. “These companies can find ways to change conduct and take actions on Kimmel, or there’s going to be additional work for the FCC ahead.”

There are no doubt other reasons for Kimmel’s suspension from ABC’s late-night show. As Noah Rothman has noted, the genre doesn’t really work anymore, and Kimmel’s show is a money-loser with more unamusing political commentary than genuine humor. But that doesn’t change the fact that Carr is a bully who at least attempted to use real government power to punish speech he did not like.

Why does Carr have this power in the first place? It would be nice if his tough-guy impersonation for a right-wing podcast could be dismissed as merely talk, but the FCC is in fact able to exert pressure over broadcasters by threatening to revoke their licenses.

That was the method by which the FCC for years enforced the “Fairness Doctrine,” which said that broadcast commentary on public affairs had to be balanced with contrasting views. This was a restriction on free speech as well, enforced by the same threat that Carr has crudely employed, except it was supported by Democrats, so it was considered vital to democracy.

As historian Paul Matzko has chronicled, the FCC under Presidents Kennedy and Johnson used the Fairness Doctrine to target right-wing radio hosts in the 1960s. Under the advice of United Auto Workers President Walter Reuther, the Kennedy administration created a front organization to file Fairness Doctrine complaints with the FCC against anti-Kennedy broadcasters. Networks either changed their programming to comply with the FCC’s demands or pulled conservative shows off the air.

The Democratic National Committee fleshed out this strategy during the Johnson administration, with political operatives paid to covertly coordinate FCC complaints against right-wing broadcasters across the country. One station sued, and in the 1969 case Red Lion Broadcasting v. FCC, the Supreme Court ruled that the Fairness Doctrine was constitutional. Unknown to the justices was that the initial complainant to the FCC that led to that case was paid by the DNC. “The Supreme Court had been hoodwinked by the most successful government censorship campaign of the last half century,” Matzko wrote.

The justification the Supreme Court used is the same one that government officials in the 1920s used when setting up the Federal Radio Commission, one of the FCC’s predecessor agencies. They said that because the spectrum space for broadcasting is scarce, it must be nationalized. And since it’s nationalized, the government has greater power to dictate how it is used.

One of the top advocates of this approach was Secretary of Commerce (and future president) Herbert Hoover. He said in 1924 that radio is “a public concern impressed with the public trust and to be considered primarily from the standpoint of public interest in the same extent and upon the basis of the same general principles as our other public utilities.” That idea was incorporated into the law and then extended to broadcast television as technology advanced.

This concept doesn’t apply to newspapers or magazines, for example, which are printed on privately owned paper and, today, published on privately owned websites. No government agency could tell Buckley he had to publish pro-Kennedy or pro-Johnson articles in National Review in the interest of fairness, since that would be a straightforward infringement on freedom of the press. But the government has created a legal fiction by which broadcast media are less free.

It doesn’t have to be this way. The scarcity-based justification for nationalizing the airwaves doesn’t hold up to basic logic. As Ayn Rand wrote in her 1964 essay “The Property Status of Airwaves,” “The number of broadcasting frequencies is limited; so is the number of concert halls; so is the amount of oil or wheat or diamonds; so is the acreage of land on the surface of the globe.” It does not follow that concert halls, oil, wheat, diamonds, and land should be nationalized and licensed for private use by federal bureaucrats.

As Rand wrote, there’s good precedent in American history for a better system to allocate this scarce resource: the Homestead Act of 1862. “As soon as it became apparent that radio broadcasting had opened a new realm of material resources which, in the absence of legal definitions, would become a wilderness of clashing individual claims, the government should have promulgated the equivalent of a Homestead Act of the airways — an act defining private property rights in the new realm, establishing the rule that the user of a radio frequency would own it after he had operated a station for a certain number of years, and allocating all frequencies by the rule of priority, i.e., ‘first come, first served.’”

Technological advances have made the scarcity-based justification irrelevant. Cable television and satellite radio effectively removed the technological limitations on the number of broadcast stations, then the internet made broadcasting easy as pie.

The FCC under President Reagan repealed the Fairness Doctrine in 1987. That allowed Rush Limbaugh and other conservative talk hosts to dominate the terrestrial radio airwaves since then. But there’s nothing stopping the FCC from reinstating the Fairness Doctrine or something like it, using the same cockamamie legal justification that is still court precedent and is based on the authorizing statutes that empower the agency.

So long as radio and TV stations are using public property, the government is going to have a say in how that property is used. If you want Brendan Carr to be less powerful, take away his agency’s unjust control over broadcasting by privatizing the airwaves and letting broadcasters buy and sell them like any other commodity.