Critics (myself included) have highlighted the extent to which broadcast media, law firms, universities, and others have capitulated to the Trump Administration’s jawboning and other tactics. ABC has been among the prominent knee-benders. It settled a weak defamation case brought by President Trump, agreeing to pay $15 million ostensibly for construction of a post-presidency library.
As others who have tried to take the easy road have discovered, capitulation simply does not pay. For example, law firms that “settled” with the administration have been asked to perform work that was apparently not part of their original “agreement. Go figure. ABC is now facing early review and potential loss of its broadcast licenses. Faced with what it refers to as this “existential threat,” ABC has belatedly discovered its spine. It has filed a 45-page lawsuit against the FCC, alleging that “[a]cting through the Federal Communications Commission, the Administration has waged a retaliatory campaign against ABC for a single reason: it disapproves of what ABC broadcasts.”
It is unfortunate it has taken the threat of licensure termination to get ABC’s attention. Ideally, this is how broadcasters like ABC (and other targets) would have responded to earlier intimidation tactics. But as I explain in my “backboning” article, financial and other considerations often influence decisions whether to capitulate or stand firm. Better late than never, in any event. It has been obvious for some time that Trump, FCC Chair Brendan Carr, and the FCC have targeted ABC based on the content of what it broadcasts. The lawsuit is a late but welcome example of the kind of “backboning” necessary to preserve First Amendment rights.
How strong is ABC’s case? So far, we only have the companies’ complaint. But it presents a compelling narrative, supported mostly by very public actions and statements by President Trump and Chairman Carr, that the administration has targeted the media company because of objections to its broadcast content.
Consider the timeline of events:
In September 2025, Disney pulled Kimmel off the air briefly after pressure from FCC chairman Brendan Carr. The impetus for that move was a comment Kimmel made about the motives of Charlie Kirk’s alleged killer.
Shortly after Kimmel’s comment was aired, Carr appeared on a conservative podcast and said of the ABC and other stations, “We can do this the easy way or the hard way. . . . These companies can find ways . . . to take action . . . on Kimmel, or there is going to be additional work for the FCC ahead.”
In April, the FCC instituted an “early review” of Disney’s owned-and-operated television stations. Asked about the unusual early review order (according to the complaint, such a proceeding had not occurred for half a century), Carr said: “If you didn’t take us seriously, now you should.”
According to the complaint: “For all but two of the Stations, this early review comes before their current license terms have even reached the halfway point, and years before the Commission is statutorily authorized to grant renewal.”
The FCC order was issued while the agency was investigating whether ABC’s “The View” had run afoul of “equal time” regulations not ordinarily applied to talk shows. The agency was also investigating Disney’s hiring practices.
The FCC’s early review order also followed the White House and President Trump’s public comments assailing ABC and Kimmel for a joke Kimmel told about the first lady.
On July 16, 2026, the President made a primetime address. ABC made the editorial judgment not to broadcast the address live. In response, the President declared, ““NBC and ABC fake news have both said that they would not cover this speech . . . . [T]his should mean a revocation of their licenses.”
Shortly after the president’s address, Chairman Carr stated that the Commission would consider ABC’s decision not to broadcast the July 16 address as part of its review of the Stations’ renewal applications.
In a retaliation case, plaintiffs have to show that the actions taken against the speaker or publisher were caused by or the result of its protected expression. As in retaliation cases filed by several law firms and Harvard University, the government has made this causal connection much easier to establish. In addition to the timeline and comments above, consider the following:
in 2020, as a presidential candidate, Trump stated, “You know, in the old days, when you used public airwaves free, you had to get a license. I keep saying if they’re reporting fake news, how come they can keep getting a license? Whether it’s ABC, whether it’s NBC, CBS, or of course CNN.”
Again, as a candidate, this time in 2024, Trump declared after an ABC-sponsored presidential debate, that ABC News’s fact-checking was “corrupt” and argued that the FCC “ought to take away their license.” During the remainder of the 2024 campaign, Trump made repeated comments arguing that ABC’s licenses should be revoked.
On Truth Social, Trump wrote: “Despite a very high popularity and, according to many, among the greatest 8 months in Presidential History, ABC & NBC FAKE NEWS, two of the worst and most biased networks in history, give me 97% BAD STORIES. IF THAT IS THE CASE, THEY ARE SIMPLY AN ARM OF THE DEMOCRAT PARTY AND SHOULD, ACCORDING TO MANY, HAVE THEIR LICENSES REVOKED BY THE FCC. I would be totally in favor of that because they are so biased and untruthful, an actual threat to our Democracy!!! MAGA”
Continuing the prior post, Trump wrote: “Why is it that ABC and NBC FAKE NEWS, two of the absolute worst and most biased networks anywhere in the World, aren’t paying Millions of Dollars a year in LICENSE FEES. They should lose their Licenses for their unfair coverage of Republicans and/or Conservatives, but at a minimum, they should pay up BIG for having the privilege of using the most valuable airwaves anywhere at anytime!!! Crooked “journalism” should not be rewarded, it should be terminated!”
Two months later he posted: “This is just one of the many reasons that the Federal Communications Commission should look into the license of . . . ABC Fake News . . . 97 percent negative to Republicans!”
Trump again declared on social media that late-night TV hosts “are almost 100% Negative to President Donald J. Trump” and asked if broadcast licenses should “be terminated? I say, YES!”
These and other examples of presidential and FCC statements about ABC are included in the complaint, as are the regulatory actions that followed soon after. It is possible courts will not treat the president’s statements as persuasive evidence of retaliation by themselves. After all, government officials are entitled to express their views, including claims they are being treated unfairly by the media. Here, however, Trump’s statements are more direct and explicit. They suggest, if not order, license revocation in retaliation for coverage and editorial decisions.
Whether or not this evidence is sufficient, the complaint lays out a timeline establishing cumulative and escalating pressure on ABC and Disney to alter the content of their broadcasts or face regulatory sanctions. The regulatory action followed, indeed was based on, perceived bias in editorial decision-making. That is textbook First Amendment retaliation. As the complaint alleges:
That campaign began in this Administration’s earliest days and has only intensified since. Again and again, the Administration has attacked ABC’s speech – the stories its journalists report and the viewpoints its network programs air. Over time, those attacks have escalated into express demands that ABC be stripped of its broadcast licenses because of its speech.
The plaintiffs are asking for quick relief, and for good reason:
The Commission is poised to make good on its threat any day now: the public comment period on the renewal applications has closed, and the Commission may, at any moment, issue an unprecedented Hearing Designation Order for all eight Stations, which would kick off a formal agency adjudication to determine the fate of ABC’s licenses.
The plaintiffs claim that any adjudicatory process over its licenses would be a “charade”, particularly because the agency cannot, by statute, grant license renewals several years early. In this paragraph of the complaint, plaintiffs highlight the purpose and effect of the administration’s pressure campaign:
At one extreme, the Commission may intentionally prolong the adjudicative process, miring ABC in years of costly litigation, with the threat of adverse action ever present and with every editorial judgment shadowed by the prospect of provoking the Administration into further retaliation. After all, ‘the value of a sword of Damocles is that it hangs—not that it drops.’ First Choice Women’s Res. Ctrs., Inc. v. Davenport, 146 S. Ct. 1114, 1127 (2026) (quoting Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting)). At another extreme, the Commission may use the hearing to deny license renewal or immediately revoke the Stations’ licenses, forcing Plaintiffs off the air entirely, as the President has repeatedly demanded. In either scenario, the Administration accomplishes its goal of eliminating a perceived media critic: either it gets Plaintiffs to fall in line, or it silences them if they refuse.
Although the plaintiffs have brought only a “retaliation” claim, the campaign has all the hallmarks of an informal censorship scheme. This is not a one-off retaliatory action, but a pattern and practice of ratcheting up the threats and pressure on a target in order to suppress disfavored expression. Although retaliation and “jawboning” are perceived as different types of invidious actions, the Trump Administration has blurred the line between the two.
The complaint sets forth a convincing case that plaintiffs’ First Amendment rights have been violated. So, what will the FCC argue?
Briefly, if past is prologue, the agency will try to convince the court that (1) the president’s statements about media coverage are government speech, (2) the FCC is empowered to investigate media companies and to insist that they broadcast in the “public interest,” (3) the FCC’s interpretation of the equal time or “equal opportunities” regulation is valid and not retaliatory, (4) FCC regulations empower the agency to investigate discriminatory employment practices, and (4) none of the above actions were undertaken to punish the companies based on their exercise of editorial discretion or the content of their broadcasts. That is a hard theory to swallow given the record already compiled.
I would expect the district court to grant temporary relief. I would also expect that a motion to dismiss the complaint will be denied. And plaintiffs already have a strong record for summary judgment. If the outcomes of the retaliation cases filed by four law firms and Harvard are any indication, plaintiffs are likely to succeed on the merits in the district court.
By then, of course, some of the damage will have been done. The companies will have retained counsel (one of the very best by the way, Paul Clement) and will have to expend resources to save their licenses. And even if they win, they may look over their shoulder in the future - at least, that is what the administration is hoping.
Backboning requires resolve, fortitude, and perseverance. Hopefully ABC’s stand will encourage other media companies and targets of retaliation to follow suit. Otherwise, as the complaint alleges, “the message to every media company in the country will be unmistakable: tell only the stories the Administration deems favorable, or face the coercive machinery of the federal government. In such a world, the press could in no way be described as free.”