The Federal Communications Commission chair seems determined to press ahead with harassing a media organization disfavored by his political patron, President Donald Trump. Fortunately for free speech and the rule of law, Brendan Carr’s latest regulatory action against a broadcaster likely will be ruled out of bounds by a court — someday.
On Tuesday, Carr took the highly unusual step of ordering an early license review for the eight broadcast TV stations owned by ABC and its parent company, Disney. This has happened rarely in the FCC’s nearly 100-year history, and it is the first review of its kind in decades. This is not the first FCC action related to ABC; it opened an investigation last year into ABC’s diversity and inclusion policies, as well as an investigation into “The View” over an appearance by then-Democratic Senate candidate James Talarico.
The first lady’s opinion is irrelevant as a matter of law, regulation, TV licenses and the First Amendment.
But Carr’s order came just 24 hours after first lady Melania Trump and her husband criticized ABC over Jimmy Kimmel’s comment in a late-night bit last week that she looked like an “expectant widow.” In light of the security breach at the White House Correspondents’ Association dinner, for which Cole Tomas Allen was charged with attempted assassination, the first lady suggested ABC “take a stand” and fire Kimmel.
The first lady has every right to take offense, though Kimmel has said his comment was about the president’s advanced years, not a call for his assassination. But the first lady’s opinion is irrelevant as a matter of law, regulation, TV licenses and the First Amendment. Kimmel and ABC have the right to broadcast speech that offends the president and his wife without the government threatening to remove them from the air.
You don’t have to be a fan of Kimmel’s comedy to understand the underlying principle. The First Amendment prohibits the government from taking action against any kind of speech short of obscenity, defamation, fraud or incitement to violence. Broadcasters enjoy somewhat less protection than the public at large; they are obligated to act in the “public interest, convenience and necessity,” a vaguely defined standard, to keep their licenses. But the basic constitutional protections are similar.
Carr, however, has been testing these norms since the president appointed him FCC chair in early 2025. Last month, Carr warned broadcasters about their news coverage of the war against Iran, saying it could violate the FCC’s “news distortion” policy and lead to the loss of their licenses. Never mind that the policy involves outright fabrication, not just a mere dispute about the accuracy of a news story; never mind also that no station has ever lost a license over violating it. Carr’s aim was to lend rhetorical support to Trump’s complaint that some reports about the war have been “intentionally misleading” and therefore, in the president’s reckoning, an act of treason.
The chair previously had opened or continued investigations of ABC, CBS and NBC, not coincidentally the broadcasters most often criticized by the president, while ignoring broadcasters perceived as the president’s allies. And he has shown a particular interest in Kimmel; in September, Carr threatened ABC’s licenses after Kimmel made comments in the wake of the murder of conservative activist Charlie Kirk. Amid the hubbub, ABC briefly suspended Kimmel; it put him back on the air as the backlash to Carr’s backlash grew.
In all, Carr’s threats have produced plenty of noise but little in the way of lasting impact. In 15 months as chair, he has not designated a single one of the FCC’s 33,000 radio and TV station licensee for revocation hearings, the first step in yanking a license. The FCC’s announcement on Tuesday was an escalation, but it, too, fell far short of that dire result.
First, revoking a license for any reason is rare at the FCC; it typically involves lying or fraudulent conduct on the part of a license holder, not a controversial program. Second, Carr, an experienced communications lawyer, knows that a case involving editorial or programming matters will face a particularly rocky legal path. The likelihood that the agency could prevail in court on a First Amendment case is exceedingly low. In nearly a century of radio and TV broadcasting, courts have upheld only three such revocation actions, and none in the past half-century.
That’s not to say Carr’s early renewal review does not have consequences for ABC, Disney and possibly Kimmel. Disney wavered briefly last fall when it suspended Kimmel amid Carr’s threats. Carr’s action Tuesday puts the company on the defensive, forcing it to devote time and resources to making its case for renewals that would otherwise have been automatic. Disney can surely afford the hassle, but it’s a hassle nevertheless.
“We are confident [our] record demonstrates our continued qualifications as licensees … and are prepared to show that through the appropriate legal channels,” a Disney spokesperson said in a statement on Tuesday.
And that may be the entire point: A long, drawn out process involving lawyers and legal briefs, leading not to the death penalty but, perhaps at worst, to an official reprimand or fine. Carr will have waved the FCC’s sword and drawn the praise of the president; Disney will have sat up in response. The process itself becomes the punishment.
But don’t expect much more than that.
“This is unprecedented, unlawful and going nowhere,” the FCC’s lone Democratic commissioner, Anna Gomez, said in a statement on Tuesday. “It’s a political stunt and it won’t stick. Companies should challenge it head-on. The First Amendment is on their side.”
Paul Farhi is a former media reporter for The Washington Post, where he was a staff writer for more than 35 years. He writes about the media industry for The Atlantic, The Daily Beast and Columbia Journalism Review, among other outlets.