Today, on behalf of a bipartisan coalition of eighteen former Chairs, Commissioners and other top Federal Communications Commission (FCC) officials, TechFreedom and Protect Democracy filed an amicus brief supporting ABC’s request for emergency relief from the U.S. District Court for the District of Columbia. ABC’s lawsuit challenges the Commission’s early review of the network’s broadcast licenses and the agency’s ongoing “retaliatory campaign” against ABC’s speech.

“Brendan Carr is talking out of both sides of his mouth,” said Berin Szóka, President of TechFreedom. “In court, the FCC claims it is merely enforcing its employment discrimination rule, but the official notice requiring ABC to beg for license renewal said this proceeding ‘enables the FCC to ensure that the broadcaster has been meeting its public interest obligations more broadly.’ And in public, Carr has repeatedly used that concept to threaten broadcasters because of their speech. Even Carr’s fellow Republicans, from Sen. Ted Cruz to the former FCC officials joining our brief, recognize that ABC has been threatened because of its speech. The Supreme Court has been clear: No court is ‘required to exhibit a naiveté from which ordinary citizens are free.’”

In a declaration supporting ABC’s lawsuit, former FCC Chair Mark Fowler (1981–87) aptly summarized Carr’s abuses: “Never in its history has the agency ever acted so corruptly and unlawfully to intrude on broadcasters’ First Amendment rights.” ABC’s complaint documents Carr’s extensive threats against the network. The FCC’s response glibly waved away its misdeeds, failing entirely to address the crux of the lawsuit: The Supreme Court has repeatedly held that coercive threats from government officials aimed at suppressing speech violate the First Amendment regardless of whether the government has an ostensibly valid legal basis for them.

“Justice delayed is justice denied, and nowhere is that more true than when free speech is threatened,” concluded Szóka. “The Supreme Court has held, nine times since 1972, that the ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ Just this year, the Court said that ‘self-censorship in response to a wellfounded fear that the law will be enforced against them is an injury in fact that can be realized even without an actual prosecution.’ The Court has recognized that ‘constitutional claims’ involving ‘here-and-now’ injuries that are ‘impossible to remedy once the proceeding is over’ must be heard in federal court before an agency has completed its administrative process. Just so here: If a district court declines to exercise jurisdiction to stop Carr’s abuse of power now, the FCC will run roughshod over the First Amendment for years.”

In July, TechFreedom filed an opposition to petitions to deny renewal of ABC’s broadcast licenses, explaining why the Commission lacks any statutory or constitutional authority to force an early license renewal or prematurely terminate ABC’s broadcast licenses. We also explained why ABC’s employment practices are a pretext for retaliating against ABC for its speech.

TechFreedom’s podcast about the case will appear shortly on the Tech Policy Podcast featuring Bob Corn-Revere, former FCC general counsel, who filed another brief in support of ABC on behalf of the Foundation for Individual Rights and Expression, where he is Chief Counsel.

The case is American Broadcasting Companies, Inc. et al. v. Federal Communications Commission et al., No. 1:26-cv-02902 (D.D.C.). Protect Democracy’s announcement can be found here.

###

Find this release on our website and share it on Twitter and Bluesky. We can be reached for comment at media@techfreedom.org. Read our related work, including:

About TechFreedom: 

TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

</>