ABC's lawyers and free speech experts tore into President Donald Trump's Federal Communications Commission chair as a federal judge weighed the network's bid to save its TV licenses.
The clash came Tuesday at a hearing before U.S. District Judge Loren AliKhan in Washington. ABC and its parent company, Disney, asked her to block FCC Chair Brendan Carr's early review of the licenses for all eight ABC-owned stations.
Carr ordered the review in April, a day after Trump urged ABC to fire late-night host Jimmy Kimmel, the wire service reported. ABC's lawsuit says the administration is targeting the network because it "disapproves of what ABC broadcasts."
"There's no doubt that this conduct is unconstitutional," ABC attorney Beth Wilkinson told the judge, according to MeidasTouch reporter Scott MacFarlane.
"[Trump has] put in place a chairman at the FCC … who understands his marching orders and isn't shy about saying so," Wilkinson said.
The government's lawyer told AliKhan that the FCC's review grew out of an "anti-discrimination" investigation into ABC's diversity and hiring practices, MacFarlane reported.
ABC's legal team countered that the FCC cannot legally renew a license more than 30 days before it expires, and some of ABC's licenses are not up for renewal for years, according to First Amendment lawyer Ari Cohn, who posted updates during the hearing.
"So the only reason to call for early renewal is to deny," wrote Cohn, whose tech policy group, TechFreedom, filed a brief backing ABC.
When AliKhan asked about the 30-day rule, the government's lawyer said the review was not about the licenses but about ABC's failure to fully answer the FCC's hiring inquiries, Cohn reported.
"[L]iterally nobody believes this, even Brendan Carr," Cohn wrote.
"The government's statement that the early renewal order isn't about the licenses is a fatal admission," ABC's lawyer argued, according to Cohn. "Why do you need to use the tool that is explicitly about licenses if it's not about them?"
"Brendan Carr is talking out of both sides of his mouth," TechFreedom President Berin Szóka said in a statement when his group filed its brief.
Szóka pointed to the FCC order's own language about ensuring ABC "has been meeting its public interest obligations more broadly."
Carr also said ABC's July decision not to air a prime-time Trump speech live would be part of the review, according to the lawsuit. AliKhan asked the government's lawyer whether that undercut its claim that the review was only about hiring, Szóka wrote in a live thread.
AliKhan also challenged ABC, asking whether the FCC's real aim might be to force the network to cooperate with its hiring investigation rather than to punish its speech, Cohn reported.
"When people tell you who they are, and what they're going to do, believe them," ABC's lawyer replied, according to Cohn.
The government's lawyer also argued that AliKhan has no power to hear the case, saying it belongs in a federal appeals court, MacFarlane reported. The judge took up that question before the free speech arguments, Cohn noted.
AliKhan asked how ABC could challenge what it calls a pressure campaign if the FCC simply renewed its licenses. The government's lawyer said there would be no FCC order to challenge, and the judge suggested ABC would have no way to fight back, Cohn reported.
"The government's position is nuts!" Cohn wrote, summarizing ABC's reply that courts would turn away any early challenge that lacked a final FCC decision.
ABC's lawyers said they are fighting the FCC's pressure campaign, not a final agency ruling, Cohn reported.
"They must fail to engage with it, because it is damning for them," Cohn wrote of the government's response to that point.
The government's lawyer also argued that ABC has not suffered the kind of lasting harm that would require the court to step in, because its licenses remain active, MacFarlane reported.
"Our concern is that we are chilled. We are making different editorial decisions," Wilkinson told the judge, according to Reuters reporter David Shepardson.
"[O]ur head is in a guillotine," Wilkinson said later, according to MacFarlane.
ABC says "The View" has not invited a political candidate on air since February because of the FCC's pressure.
The government's lawyer conceded that ABC's broadcasts are protected speech, and the judge called its argument that a company as large as ABC can absorb the costs of the fight "curious," according to Cohn.
"We don't want to be here," Wilkinson told the judge at one point, according to Wall Street Journal reporter Joe Flint.
"I don't want to be here either," AliKhan replied.
AliKhan also asked the government's lawyer about Trump's statements that ABC should lose its licenses, Szóka reported.
"The statements are the statements," the lawyer replied, according to Szóka.
No ruling was expected Tuesday, MacFarlane reported, though he said one could not be ruled out. The FCC has promised to give the court 48 hours' notice before sending ABC's licenses to a formal hearing.
