Bob Corn-Revere is chief counsel for FIRE and he served as chief counsel to former FCC Chair James H. Quello.
Now that ABC Network has sued the Federal Communications Commission for violating the First Amendment in response to your unprecedented gambit of seeking to deny renewal of its television station licenses, I suspect you are not feeling a lot of love these days.
It is widely said that you are nothing but a political hack who sold out your previously professed beliefs about free expression and the rule of law for the short-term goal of being named FCC chairman, that you corrupted the agency’s nonpartisan purpose by focusing its efforts on punishing perceived critics of the Trump administration, and that you regularly prostrate yourself with cringe-worthy displays of servility to soothe the president’s fragile ego.
All these things may be true. But the criticism is terribly unfair because it fails to acknowledge your substantive accomplishments. When the dust settles, it may turn out that you have done more than any FCC chairman since the agency’s creation in 1934 to advance full First Amendment protection for the broadcast medium.
For starters, you have become a catalyst for bipartisanship. You united 13 former top FCC officials from across the political spectrum to publicly oppose your various efforts to punish ABC (and the number is 14, if you count me, who filed a separate opposition). This impressive list includes six former commissioners (four of whom served as chairman), chiefs of staff, bureau chiefs, and a general counsel. Three of the four former chairmen are Republicans.
Bringing together a group of individuals who hold sharply different views on politics and broadcast policy is no small feat. I don’t know of anyone else who could have managed it. But Ronald Reagan’s FCC chair, Mark Fowler, crystallized the motivation for this kumbaya moment in a sworn declaration filed in the ABC lawsuit: “Never in its history has the agency ever acted so corruptly and unlawfully to intrude on broadcasters’ First Amendment rights.”
As it turns out, your bad example has proved to be a powerful unifying force. And the feeling may well be unanimous. There is not a single living former FCC commissioner or high-level staff member who has publicly endorsed your stated views of the law or your actions against ABC. So, congratulations.
Another accomplishment is that you brought the Commission’s jawboning out in the open. Jawboning is the practice of misusing regulatory processes and employing threats to coerce the government’s targets into silence. The Supreme Court recently —and unanimously — reaffirmed that such tactics are illegitimate and unconstitutional. The FCC has long been guilty of this practice, and commissioners of both parties have engaged in it. Just never so openly or to this extent.
But jawboning cases were always notoriously hard to prove because the pressure tactics usually were brought to bear in back rooms and behind closed doors. That is no longer true. In your zeal to curry favor with your boss, you have made your threats openly on social media and at other venues. You have reposted and amplified President Trump’s dyspeptic rants about the media and his condemnation of certain on-air personalities.
Most notorious was the podcast interview where you delivered an ultimatum to the Disney Corporation (owner of the ABC network) that it must do something about late-night host Jimmy Kimmel “or there will be additional work for the FCC ahead,” adding, “we can do this the easy way or the hard way.” Simply breathtaking. Not since the term “wardrobe malfunction” was coined to describe the 2004 Super Bowl incident with Janet Jackson and Justin Timberlake has a phrase associated with an FCC proceeding inspired such widespread reaction (and mockery).
Ted Cruz, the Republican chairman of the Senate Commerce Committee, called your remarks “dangerous as hell,” likening them to a mafioso threat. Your Kimmel ultimatum even caught the attention of Supreme Court Justice Neil Gorsuch, who called it out in his concurrence in Trump v. Slaughter. After citing your remarks and expressing concern about the accumulation of executive power, Justice Gorsuch suggested the courts may need to become more active in checking its misuse.
And this foreshadows what may be your most lasting achievement. The campaign against ABC through a series of escalating demands, abusive investigations, and the threat to its licenses has given the network no realistic option but to sue the FCC. The lawsuit sets forth in vivid detail the many ways in which the Commission has abused its own processes, violated due process, and ignored the law in retaliation for being on Trump’s wrong side. The FCC’s actions betray the agency’s purpose and violate the First Amendment.
But by overreaching to the extent that you have, the FCC under your management has opened the door for a judicial response even before the end of your ABC show trial. That change of venue takes the matter out of the FCC arena, which currently is run by political whim, and into court, which is governed by the rule of law. It also takes the timing out of your hands, where the game has been to slow-roll the process to make it as painful and expensive as possible.
Judicial oversight promises to end not only your current abuses but could lead to more lasting positive changes in the law. As a regulated medium, broadcasting has been subject to less robust First Amendment protections under obsolete precedents like Red Lion Broadcasting Company v. FCC. Although the FCC never had the authority to regulate broadcast programming in the ways you now claim, courts up until now have been reluctant to overrule it for lack of a clear case of FCC overreach. You have solved that problem in spades.
Once in court, it will be difficult to avoid dealing with these old precedents, which are the elephant in the room. The process of correcting the law began in the 1980s when the FCC under Mark Fowler eliminated the FCC’s fairness doctrine because it was inconsistent with the First Amendment. And now, with your ongoing demonstration of just how partisan and out-of-control the Commission can be, it is, as Justice Gorsuch put it, “time to return, all the way, to the Constitution.”
And that will be your true legacy. These positive developments may just be the result of your unprincipled blunders, but they are accomplishments nonetheless. Thank you, Brendan Carr.