Today, ABC sued the Federal Communications Commission, asking a federal court to halt retaliation against ABC’s speech in general and, in particular, to enjoin as unlawful the process by which the FCC has forced ABC to apply years early for renewal of the licenses for the eight TV stations it owns in major media markets. 

“ABC’s First Amendment case could not be stronger: The FCC has weaponized its powers to retaliate against ABC for its speech, and thus chilled criticism of this administration by all broadcasters,” said Berin Szóka, President of TechFreedom. “Chair Carr initially pretended that the FCC had required ABC to apply early for renewal of its licenses because of its employment practices. But he has since candidly admitted that this is about ABC’s speech, such as the Jimmy Kimmel monologue he denounced last year and refusing to carry Trump’s address making baseless claims about this year’s election. The First Amendment bars such interference with speech. Nor can the government attempt to balance speech to suit its own preferences, as the Supreme Court made clear in Moody v. NetChoice (2024).”

ABC relies on a declaration from former Republican FCC Chair Mark Fowler (1981–87), who initiated the repeal of the FCC’s Fairness Doctrine. “Never in its history,” declares Fowler, “has the agency ever acted so corruptly and unlawfully to intrude on broadcasters’ First Amendment rights.” Fowler and other former FCC senior leaders have joined a bipartisan coalition led by TechFreedom and Protect Democracy in opposing petitions to deny renewal of ABC’s licenses and in demanding an end to the FCC’s “news distortion” policy.

“The FCC is effectively creating a new Fairness Doctrine with its threats,” warned Szóka. “This one is vastly more dangerous than the old one. Republicans have long recognized the dangers of the FCC meddling in the media, that the First Amendment protects all private media, and that ‘fairness’ is not something the government can judge—a view the Supreme Court has embraced. The practical result has been an explosion of media from all perspectives. But Trump sees dissent of any kind as ‘bias.’ So Carr has abandoned decades of conservative principle to turn the FCC into the very thing he said, in 2019, it shouldn’t be: ‘the speech police.’”

“The process here is the punishment, and the FCC will try to block ABC’s lawsuit with specious jurisdictional arguments,” warned Szóka. “In general, those affected by the FCC’s actions can’t sue in federal court until the agency issues a final decision. But ABC has every right to sue now. The Supreme Court has long recognized that the ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ In Axon v. FTC (2023), the Court recognized that such an irreparable ‘here-and-now injury’ can be addressed by a federal court at any time, outside the normal appeals process governed by an agency’s statute, because such harm is ‘impossible to remedy once the proceeding is over.’ That is obviously the case here. The First Amendment requires the district court to enjoin the FCC’s jawboning immediately.”

Last month, TechFreedom filed an opposition to petitions to deny renewal of ABC’s broadcast licenses, which explains why the Commission lacks the statutory and constitutional authority to force an early license renewal or prematurely terminate ABC’s broadcast licenses. We also explain why ABC’s employment practices are a pretext for retaliating against ABC for its speech, barred by both the Due Process Clause and the First Amendment.

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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.

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