What Is Inside Disney’s Lawsuit Against the FCC?Quote: “Government Censorship Is Deeply Un-American”

FCC Chairman, Brendan Carr | PHOTO CREDIT: Internet Education Foundation/FLICKR

The 46-page federal complaint of the Walt Disney Company, ABC, and eight ABC television stations against the Federal Communications Commission is both tightly grounded in fact and eloquently indignant.

It takes a bold stand in defense of First Amendment rights against the FCC’s attempt to use broadcast licenses to punish constitutionally protected speech, opening with a blunt declaration:

“Government censorship is deeply un-American.”

The lawsuit challenges an extraordinary April 27 FCC order requiring eight ABC stations to submit license-renewal applications years ahead of schedule. The stations’ licenses ordinarily would expire between December 2028 and August 2031. Nevertheless, the FCC gave them just 30 days to complete applications that, according to Disney, typically require months to prepare.

Disney’s lawsuit tells the court that the FCC had not demanded an early renewal application in more than half a century – and had never simultaneously ordered early applications from several commonly owned stations affiliated with one network.

The FCC has questioned whether ABC’s The View should continue to qualify as a “bona fide news interview” program exempt from federal equal-opportunity requirements for political candidates. The agency granted the program that status in 2002. After Texas U.S. Senate candidate James Talarico appeared on the show in February, however, the FCC ordered an ABC station to petition for a new ruling on the exemption.

The commission then demanded internal communications among the show’s booking staff, producers, executive producer, and co-hosts. Disney says no candidate for public office has appeared on The View since the inquiry began – not because ABC changed its editorial standards, but because it must now weigh whether booking a candidate could jeopardize its stations’ licenses.

This is what regulatory intimidation looks like. The government does not have to issue an explicit censorship order. It can achieve much the same result by leaving the threat of a costly proceeding – and the possible loss of licenses – pending against a broadcaster. The filing notes:

“The value of a sword of Damocles is that it hangs – not that it drops.”

Disney also connects the early-renewal order to administration criticism of ABC programming, including comments by late-night host Jimmy Kimmel. The complaint notes that FCC Chairman Brendan Carr warned ABC that the government could proceed “the easy way or the hard way” and later told the network: “If you didn’t take us seriously, now you should.”

Chairman Carr counters that broadcasters receive free access to valuable public airwaves and therefore have a duty to operate in the public interest. That principle, however, does not license the FCC to define the public interest according to whether government officials approve of a network’s political coverage.

You may not like The View or Jimmy Kimmel. We don’t. We also doubt that Republican Sens. Ted Cruz (R-TX) and John Kennedy (R-LA) spend time in front of the television chuckling at the digs thrown at Republicans by Whoopi Goldberg or Kimmel. That did not keep these conservative senators from publicly warning their fellow conservatives about the dangers of the FCC’s use of regulatory power against broadcasters.

Or consider how a bipartisan group of former FCC officials characterized the government’s message: “carry speech we don’t like at your peril.”
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Disney asks the court to halt the early-renewal proceedings and declare them unconstitutional retaliation. The court should do so. Whatever one thinks of The View, Jimmy Kimmel, or ABC News, federal regulators cannot use broadcast licenses to discipline media companies for displeasing the government.

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