You know things are rosy in Hollywood when one of the biggest legacy studios is suing the federal government. On Tuesday, Disney and ABC filed a lawsuit against the FCC, the Federal Communications Commission, accusing it of violating its right to free speech through the agency’s aggressive regulatory moves.
ABC’s lawsuit plainly says that the FCC is trying to suppress its speech and is leading a “retaliatory campaign” for the simple reason that “it disapproves of what ABC broadcasts.” FCC Chairman Brendan Carr in recent months has pushed for ABC’s broadcast licenses with its eight affiliate stations it owns to be put up for early renewal, at the earliest two and a half years before their expiration. If the FCC were to successfully strip ABC’s licenses in those eight markets, it would force those local stations off the air. ABC’s lawsuit seeks to stop that.
“With the threat of non-renewal or revocation of its Stations’ broadcast licenses on the line, ABC cannot ignore the consequences of any decision that might anger the Administration or the FCC Chairman,” the lawsuit reads, adding later, “The consequences of the Administration’s campaign against free speech reach well beyond ABC. If the Administration gets its way, 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.”
It sounds like the start of a long campaign over the right to free speech and defending the free press and entertainment industry from being bullied by the Trump administration. Disney’s lawsuit invokes language that makes the stakes seem much higher than one company. But Ray Seilie, an attorney with Kinsella Holley Iser Kump Steinsapir (KHIKS), believes it to actually be a low risk move for Disney. If it wins, it can get the FCC off its back and would look like a heroic of free speech. But if it loses, it’s only on the hook for the FCC to play its process out, try and take more adverse action (like revoking its license altogether), at which point Disney could then potentially take the FCC to court again.
“What Disney’s arguing here to try to get around is that the license renewal demand is actually a sham, that the FCC doesn’t have a good faith belief that ABC’s licenses should be revoked for whatever reason the FCC is allowed to revoke them,” Seilie told IndieWire. “Therefore the court should step in now and not allow the Trump administration to use the burden and cost of a license renewal process to punish broadcasters who the Trump administration perceives to be expressing themselves in a way that they don’t like.”
All this started with the outrage last year over Jimmy Kimmel’s monologue joke concerning the Charlie Kirk assassination, a move that got Kimmel taken off the air by Disney after some affiliate stations said they would pre-empt his show and refuse to air it. But President Trump has also taken issue with “The View,” and most recently, he railed against ABC’s decision to not air one of his primetime addresses on July 16, leading him to call for ABC’s licenses to be revoked.
The FCC is saying its review is based on an investigation into Disney’s DEI policies, but the lawsuit points out that any adjudication the FCC brings against it would be “a charade,” one that would either drag out endlessly with costly litigation and more potential threats constantly hanging over its head, or it would force Disney off the air entirely.
Much like when Trump said in his first term that his immigration and national security push was actually just a Muslim ban, or countless other times in which Trump has blurted out his real intentions, Trump’s words have effectively shown the FCC’s cards and made any legal action harder. But Seilie explains that the reason Disney and ABC likely filed this lawsuit now is because the FCC is now taking concrete action against them, something Disney can actually challenge in the courts. When the Kimmel drama initially happened, there was public outrage and a lot of big talk from Carr (remarks like “we can do this the easy way or the hard way” that were widely criticized), but looking to review licenses, something it has the authority to do, looks a lot more like retaliation.
In response to the suit, an FCC spokesperson told IndieWire, “All broadcasters have a legal obligation to operate in the public interest — even Disney. The FCC has been examining claims that Disney engaged in illegal DEI discrimination for over a year. Disney is obviously very concerned about the FCC’s proceeding, as evidenced by their ongoing campaign of disinformation as well as their decision to ask a court to stop the FCC from further pursuing matters. The FCC will continue to follow the facts and law wherever they lead.”
On the other side of the coin though, FCC Commissioner Anna M. Gomez, the Democrat commissioner with the FCC, applauded Disney for taking a stand against the administration’s censorship threats.
“For months, the FCC has waged a campaign of censorship and control against Disney’s ABC stations, using the threat of broadcast license revocations to punish a company for speech this administration doesn’t like. I have long called on companies to push back against this kind of government intimidation, and I’m glad Disney has shown courage and stepped up. This should be a welcome sign for every broadcaster who has felt the weight of this overreaching government pressure in silence,” she said. “I am hopeful that this will mark the beginning of the end of this administration’s disregard for the Constitution and the law, and that the coming months will bring the costly legal defeat this agency has been asking for since it started down this path. It is time this administration understands that the Constitution does not bend to political convenience, and that the First Amendment protects the news and commentary Americans see on their screens even when those in power wish it didn’t.”
There’s a long history of broadcasters suing the FCC for perceived speech issues, and in many cases, the FCC usually wins. The history dates all the way back to George Carlin’s “Seven Dirty Words” routine up through more recent fines levied by the FCC over expletives said on air inadvertently.
Disney, though, in the first lines of its lawsuit maybe has a sense of where this is headed and who its ultimate audience will be. The suit referenced a 9-0 decision from the Supreme Court in favor of the NRA, one that essentially said the states couldn’t use their clout to put market pressure on a group like the NRA for its speech. You might think that Disney wouldn’t want this to go to a lengthy and costly trial, but Seilie believes if we see temporary restraining orders and preliminary injunctions filed in the coming days, Disney absolutely wants some kind of judicial decision to prevent any future threats from the Trump administration and to get ahead of the burden of prepping its renewal applications.
“They’re saying the precedent’s already been set. You’re not allowed to do this, and they’re hoping that they are on the right side of this legal issue,” Seilie said.