The First Amendment looms behind the dispute between Stephen Colbert and CBS about the network’s decision to not air the host’s interview with Texas Democratic Senate candidate James Talarico.

The network says the impetus for its decision was guidance issued by President Donald Trump’s Federal Communications Commission in January. The guidance, which was clearly politically motivated, says late-night shows now must give equal time to candidates for office. If they provide on-screen broadcast time to one candidate, they must provide time to their opponents.

The result is wrong in all kinds of ways. It chills free speech, including the airing of Colbert’s interview. It reflects the Trump administration’s weaponization of the FCC to target the speech of talk show hosts who threaten Trump — something we already saw when FCC Chairman Brendan Carr succeeded in having Jimmy Kimmel temporarily taken off the air by threatening the affiliates that carry his show.

There was no good reason for the FCC to reverse guidance going back to 2006, which said late-night shows were exempt from the equal time rule, like all other bona fide news programs. What’s more, the whole episode shows why the equal time rule belongs in the dustbin of history — it is ill-suited to an era when most people get their television through cable or the internet, not over the airwaves.

To understand what’s going on here from a First Amendment perspective, you have to start with what the rule, which dates back to Section 315 of the Communications Act of 1934, intended to accomplish. The basic idea behind it was that spectrum on the airwaves was a limited resource — there just wasn’t enough of it to go around for everyone who might want to broadcast television or radio. The government took control of the airwaves and allocated them to broadcasters, ensuring that different broadcasts wouldn’t interfere with one another.

Once the government was allocating bandwidth, the logic went, it had the authority to set certain conditions on the speech that would take place over the airwaves. The equal time rule said that a broadcaster that gave airtime to one candidate for office had to treat the other candidates equally.

Effectively, the equal time rule regulates what broadcasters can and cannot broadcast, thereby directly implicating the First Amendment. In a famous (at least to First Amendment lawyers) 1969 case known as Red Lion Broadcasting v. FCC, the Supreme Court blessed the constitutionality of the limited spectrum argument in a case challenging the so-called fairness doctrine, which resembled the equal time rule but was applied to issues rather than candidates.

The Communications Act itself, however, made an exception to the equal time requirement for what it called bona fide news and interviews. That exception reflected Congress’ concern that editorial news decisions remain protected by the First Amendment.

In a 2006 decision involving a Jay Leno interview of then-California gubernatorial candidate Arnold Schwarzenegger, the FCC affirmed that Tonight Show interviews qualified as bona fide news interviews and therefore were not subject to the equal time requirement.

The 2006 guidance made First Amendment sense then — and makes even more sense now. Plenty of people get their news from late-night shows and even more do so today than in 2006. The bona fide news interview exception was designed to protect exactly this kind of dissemination of newsworthy information, like Colbert’s interview with Talarico, as well as the editorial discretion to choose which candidates are worth interviewing.

In its updated guidance, Trump’s FCC insisted that the 2006 Jay Leno rule should not be applied to all late-night talk shows. It didn’t exactly say why not, but in a footnote it emphasized language from the 2006 guidance referring to the nonpartisan nature of news broadcasts. The implication, if you read closely, was that the FCC would impose the equal time requirement if it thought a broadcaster was being partisan.

The consequence of the guidance was to send a message to the networks that the FCC would go after them if it believed they had a partisan slant in their news coverage. That creates a mechanism by which the FCC can try to influence the content of what appears on television. Such influence is a violation of the core First Amendment principle that the government should not put its thumb on the scales to determine what news Americans get.

The updated guidance would be bad no matter what administration issued it. The idea of limited spectrum is now obsolete in a world of cable and streaming television. There is no longer any plausible justification for imposing equal time and fairness requirements on the networks.

The fact that Colbert could air his segment with Talarico on YouTube — which isn’t a broadcast television network — shows the absurdity of applying laws designed for the age of over-the-air broadcast to current conditions.

The fact that the Trump administration has so openly used the FCC to promote its own partisan agenda, as it did with Kimmel, provides an additional reason to put the Equal Time Doctrine to rest permanently. Under the guise of enforcing equal time, Trump’s FCC is attempting to decide what the networks can say — and, in some cases, succeeding.

The legal complexity here shouldn’t obscure the key point, which is straightforward. The First Amendment is designed to prevent the government from doing precisely what the Trump administration is trying to do: dictate what we are allowed to watch. Everyone who cares about free speech should agree with this conclusion. And that belief should be truly nonpartisan.

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This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

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