Nobody unwittingly makes the case for dismantling the Federal Communications Commission better than its chairman, Brendan Carr.
Would a licensed broadcaster be allowed to air the live-streamed execution of Fort Hood shooter Nidal Hasan? The FCC will defer to the Pentagon on that one, Carr said on Friday. But air unfavorable coverage that might upset President Donald Trump? Expect a legal fight.
Lawyers for ABC spelled this out during a hearing last week. The broadcaster is suing the FCC, alleging that the agency’s early review of eight broadcast licenses is politically motivated retaliation against the network.
ABC said the pressure is already having a chilling effect on what it airs. “We sit with our head on the guillotine and wonder if anything we say is going to make that come down,” said Beth Wilkinson, a lawyer for ABC. “We are watching everything we do.” That includes deciding whether to air presidential speeches and which guests to book on “The View,” its popular talk show.
The FCC isn’t supposed to be the speech-police wing of the Trump administration, but it sure acts like it is. Last year, the FCC threatened to pull licenses for affiliates that aired Jimmy Kimmel’s late-night talk show after the comedian made a distasteful comment regarding the murder of conservative activist Charlie Kirk. The FCC was open with its intimidation. “We can do this the easy way or the hard way,” Carr said at the time.
He has since announced that the FCC would investigate whether “The View” should be subject to equal-time rules from which the FCC granted an exemption in 2002. In March, Carr threatened ABC affiliates again, using what Trump claimed was a misleading headline as an excuse to float revoking their licenses. The following month, Carr announced the early license review.
The “public interest” justification has been used several times in FCC history to suppress speech, but the agency doesn’t have a pass to pick and choose what can be shown on television. Just ask Carr, circa 2019, who declared that serving the public interest doesn’t provide the FCC with “a roving mandate to police speech.” Since then, Carr seems to see the public interest as lining up quite closely with the Trump administration’s interests.
ABC has a strong case, and U.S. District Judge Loren L. AliKhan seemed to agree. She asked a Justice Department lawyer during the hearing: “What is it that made this so different that you needed to call for an early license renewal?” It’s the right question, and the government doesn’t have a good answer.
The court can block Carr from strong-arming ABC in this case, but the better solution would be for Congress to abolish the FCC altogether. That way, neither Carr nor his successors, under Republican or Democratic administrations, would be tempted to abuse this power again.
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