Trump's ABC Comments Are 'Nonsense' but Not Unprecedented, Experts Say
Attorneys, academics and First Amendment experts told us that Republican presidential candidate Donald Trump’s calls for ABC to lose its license over Tuesday's presidential debate telecast (see 2409110058) are nonsensical and that government action against a broadcaster would likely ultimately fail. In addition, some said presidential calls for action against broadcasters over their reporting aren’t unprecedented. “All political players tend to do this when it suits them,” said veteran First Amendment attorney Robert Corn-Revere, now chief counsel for the Foundation for Individual Rights and Expression. “None of them have the constitutional authority to back it up.”
“The FCC does not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage,” said FCC Chairwoman Jessica Rosenworcel on Thursday. “The First Amendment is a cornerstone of our democracy.” FCC Commissioners Brendan Carr, Nathan Simington and Geoffrey Starks didn’t comment. “Every broadcaster has a responsibility to serve its community of license,” said FCC Commissioner Anna Gomez. “That said, the FCC is not – and should not be – in the business of regulating content.” The campaigns of Trump and Vice President Kamala Harris, the Democrats' nominee, didn't comment. Neither did ABC nor NAB.
Trump’s comments calling for ABC’s license -- and his past comments attacking the licenses of cable networks and Comcast -- are “nonsense” and “absurd” because the FCC doesn’t license programming networks and cable companies, Corn-Revere said. Yanking the licenses of ABC-owned stations, he added, wouldn’t affect the network broadcast. “There’s no power” in the FCC’s regulations to cancel the license of a broadcast station over its news coverage, said Freedom Forum First Amendment Specialist Kevin Goldberg. Punishing a station for its news broadcast is “obviously unconstitutional,” said Corn-Revere.
Numerous attorneys also rejected the idea that the FCC’s equal opportunity policy could be invoked against ABC because debates fall under the categories of news coverage that are exempt from those rules. The long-defunct fairness doctrine also couldn’t have been used against ABC here because it required that networks devote time to contrasting views, which the debate accomplished, Corn-Revere said.
“Many presidents, including the president I served under -- Ronald Reagan -- often expressed exasperation with the press,” said Mark Fowler, FCC chairman from 1981 to 1987, in an interview Thursday. “They even, in a loose moment, sometimes even threatened broadcasters, including on renewal of licenses and revocations,” Fowler said. “Interestingly, none ever took such actions and that will apply here almost certainly.”
Reed Hundt, who headed the FCC under former President Bill Clinton, disagreed that Trump’s comments are normal. Moreover, he called the idea of a president directing FCC action against broadcasters over content “utterly lawless.” Hundt said that when he was chairman, Clinton’s White House counsel wrote a memo barring the president and his staff from contacting Hundt about FCC business. Trump’s recent FCC-related comments and past acts, such as tweeting at former Chairman Ajit Pai to go after licenses, are “completely outrageous and a characteristic act of a dictator,” Hundt said. Pai and former FCC Chairmen Tom Wheeler and Richard Wiley didn’t comment.
Presidents like Richard Nixon and Lyndon Johnson used regulatory levers to pressure media outlets they didn’t like, Philip Napoli, director of Duke University's DeWitt Wallace Center for Media & Democracy, said in an interview with us. He pointed to Nixon reportedly wanting the FCC to scrutinize the broadcast licenses of local stations that at the time were property of the parent company of The Washington Post.
Corn-Revere said President John Kennedy was involved in efforts to use the fairness doctrine to target right-wing radio broadcasters and also pointed to the short-lived 1970s FCC family viewing hour rules as a tool the administration used against broadcasters. All those efforts ultimately were unsuccessful, Corn-Revere noted.
Challenges to broadcast and other FCC licenses by non-governmental entities, political groups or even private citizens -- not to mention rival corporations -- are common, sometimes on explicit or implicit political grounds. For example, Goldberg noted the campaign of the Media and Democracy Project and former telecom lobbyist Preston Padden to end the license of Fox station WTXF Philadelphia (see 2401310059). That campaign “rightly has no legs” because of First Amendment protections, Goldberg said. However, Padden said Thursday that MAD’s campaign differs from Trump’s call for action because it's based on a court settlement Fox reached with voting machine maker Dominion over false reporting about the 2020 election rather than “disagreeing with a news slant.” Fox didn't comment.
In June, Loudoun County Public Schools in Virginia filed a complaint with the FCC asking it to act against Sinclair’s WJLA-TV Washington, D.C., over its news reporting. Though he has repeatedly declined to comment on Trump’s calls for lifting broadcast licenses, Commissioner Brendan Carr excoriated Loudoun County in a post on X at the time. “Now they want the FCC to censor a news station for shining a light on their activities,” Carr posted. “I am a no, and the FCC should dismiss this filing without delay.” Recently Carr, widely seen as a likely FCC chair under a second Trump term, has been vocal in condemning a Brazilian judge for censoring the X social media platform. “Free speech is democracy’s check on excessive government control,” Carr posted about the X ban. “Censorship is the authoritarian’s dream.”
Stakeholders differed on whether Trump’s penchant for threatening broadcast licenses could have policy or practical repercussions if he wins reelection. Project 2025's Mandate for Leadership chapter (see 2408020024), which Carr wrote, hardly mentions broadcast licenses, though it lays out plans to target big tech companies and social media content moderation policies. However, attorneys we spoke with said they would expect broadcasters to prevail over federal content-based challenges to their licenses in court. Regardless, they also said the process would be expensive and burdensome for the broadcasters.
Asked whether Trump's rhetoric might have a chilling effect on reporting by ABC or other broadcasters, Napoli said it was unlikely given that nothing has come of the former president's similar calls over the years for broadcasters to lose their licenses. Napoli said ABC and other outlets probably aren’t concerned. Trump’s comments “were just a typical Trumpian effort to change the subject after his unimpressive debate showing,” said former FCC Commissioner Michael Copps.
The FCC, like the Postal Regulatory Commission, is supposed to be independent and have bipartisan members “to avoid this kind of political interference,” Khadijah Costley White, Rutgers University associate professor-journalism and media studies, wrote in an email. Noting Trump's alleged use of the postal office to delay mailed ballots during the 2020 election, Costley White said "Trump could figure out a way around this. He specializes in adapting systems to fit his wishes, and he's not at all invested in political norms.”
"Many politicians try to 'work the refs,' especially during election season, by pushing back against unfavorable media coverage and accusing media outlets of political bias," emailed Victor Pickard, University of Pennsylvania professor-media policy and political economy. "But Trump takes it to a whole new level." Pickard said it was unlikely Trump would have enough power to pressure the FCC on license renewals or revocations, "but it doesn’t mean he wouldn’t try ... ." Pickard said that given the way Trump tried directing media policy when in office, "we could expect more of that under a second Trump administration."