From Broadcast to Streaming: Who’s Liable for Podcast Content?
To start, we’ll make the assertion that podcasts are talk shows. Audio-only podcasts equate to radio talk shows, while those with video and audio versions compare to broadcast TV talk shows.
The Evolution of Talk-Based Programming
Talk has been part of the video landscape since the 1950s. With limited distribution options at the time, broadcast TV was the primary home for these programs. Before on-demand content existed, talk programming was structured around TV time slots: morning talk, daytime talk, and late-night talk.
Morning talk was initially news-based, as viewers had no other way to see domestic and international events. Over time, it evolved into entertainment-driven programming, blending news with celebrity interviews and promotional content for the networks airing them.
Daytime talk emerged in the 1960s, largely through syndicated shows rather than network-controlled programs. These shows combined serious discussions with variety elements, including musical performances, comedy, and cooking segments.
Late-night talk is best traced back to “Steve Allen’s” Tonight Show, which was later taken over by Jack Paar. Paar eventually left, citing creative differences and frustration with censorship. This set the stage for Johnny Carson, who would define late-night for the next three decades.
By the 1970s, syndication had become a viable business model, allowing independent voices to break through. Phil Donahue, Oprah Winfrey, and others leveraged this system to express their views while also achieving financial success. By the 1990s, syndicated talk became a major part of TV station lineups, but its prominence began declining in the 2000s. Today, in the 2020s, syndicated talk has largely disappeared.
The Rise of Podcasts: A New Talk Medium
Technology has made it so easy to produce content that anyone can now create a talk show. But what truly distinguishes subject-driven syndicated talk shows from podcasts today?
One key difference is regulation. Broadcast TV networks (ABC, CBS, NBC, Fox affiliates, and independent TV stations) are heavily regulated by the FCC. They must comply with public interest standards and can be fined or sued for airing indecent content, defamation, or false information. Cable networks (CNN, Fox News, ESPN, HBO) are not FCC-regulated since they do not use public airwaves, but they can still be held liable for defamation or broadcasting false content.
In contrast, podcasts and digital platforms (Spotify, Apple Podcasts, YouTube) are not regulated by the FCC and are largely protected under Section 230 of the Communications Decency Act. This means that while individual podcasters can be sued for defamation or spreading misinformation, the platforms that host them generally cannot be held liable for their content.
Podcasters often invoke freedom of speech as a defense, but this does not protect them from lawsuits if they spread false, harmful, or defamatory content. While the First Amendment prevents government censorship, it does not shield podcasters from civil liability. For example, Alex Jones was sued for defamation and lost after falsely claiming the Sandy Hook shooting was a hoax, resulting in a $1.5 billion judgment. In contrast, Joe Rogan has avoided legal trouble by framing controversial discussions as opinions or open-ended questions, making them harder to sue over. Podcasters can express opinions freely, but they can still be held accountable for spreading false information or inciting harm.
Should Platforms Be Held to Broadcast Standards?
I argue that platforms should now be held to the same standards and ethics as FCC-regulated broadcast stations. These platforms now distribute content over cellular networks, which use public airwave frequencies purchased by service providers. If broadcasters must follow public interest regulations to transmit content, why should digital platforms be exempt?
Comparing a Simplified Content Distribution Workflows
Broadcast Networks Using TV Stations (FCC Regulated):
> 3rd party content supplier → TV Station → Broadcast Transmitters → Users
Video Delivery Platforms (YouTube, Instagram, X, etc.):
> 3rd party content supplier → Platform → Cellular Tower Transmission → Users
Why would video delivery platforms not be held to the same standard as TV stations when they use similar transmission methods?
Extending the analogy further, if content is delivered via wired connections (broadband ISPs, fiber, or cable TV providers), then these platforms should fall under cable TV rules and be held liable for their content.
Cable TV Content Workflow:
> 3rd party content supplier + in-house content → Master Control → Satellite/IP/Wired delivery to cable headends → Wired delivery to homes → Decoded/authorized content for users
Video Delivery Platform Workflow:
> 3rd party content supplier + in-house content → CMS (Content Management System) → Wired IP delivery to homes → Decoded/authorized content for users
The Role of Tech Companies in Content Moderation
Tech companies argue they do not control the content, and that regulation would stifle creativity. However, this argument is flawed, as these companies already curate content through recommendation algorithms, demonetization policies, and moderation decisions. These actions are functionally identical to how TV networks program content. Thus, it is inconsistent to hold TV broadcasters accountable while allowing digital platforms to operate without similar responsibility.
Conclusion: A Call for Accountability
Since podcasts are talk shows, and talk shows are now distributed through digital platforms that function like broadcast and cable channels, these platforms should be held to the same legal and ethical standards. Companies that distribute content should be liable for what appears on their platforms, just as broadcast and cable networks are held accountable for their programming.
The same argument can be made for social media outlets that distribute video over the cellular airwaves or via ISPs to homes. The platforms should be held to the same standards.
Will this stifle independent voices? No! Anyone can set up a server or use a cloud-based server to deliver their content directly to users via their own platform. This shift will clarify the responsible parties and have no impact on programs that meet the broadcast or cable standards required by the FCC to protect the public interest from disinformation.