WASHINGTON — A lawyer for ABC on Tuesday asked a federal judge to prevent the Trump administration from conducting an unusual, early review of its broadcast licenses, likening it to a looming execution by guillotine that was already chilling the network's editorial decisions just weeks before the U.S. midterm elections.
U.S. District Judge Loren AliKhan did not immediately rule on ABC's request for a preliminary injunction prohibiting the Federal Communications Commission from conducting its early review, which it said was unconstitutional, a violation of free speech and a retaliation for content President Donald Trump dislikes.
A government attorney argued that, as a procedural matter, the court doesn’t have jurisdiction over ABC’s case because it belongs in a different venue. The government also challenged the network’s First Amendment arguments, and said ABC had failed to show it suffered irreparable harm.
A ruling was not expected until at least mid-October. After extensively questioning both sides, she asked them to submit brief additional arguments by Oct. 9, for the government, and Oct. 14, for ABC.
ABC and its parent company, Disney, sued the FCC and FCC Commissioner Brendan Carr in August, several months after the commission ordered eight ABC-owned stations to submit renewal applications for their broadcast licenses years ahead of schedule.
The case is one of several ongoing legal battles between Trump's Republican administration and news outlets — including The Associated Press — over their coverage and access to the executive branch since Trump returned to the White House for a second term.
At Tuesday's two-hour hearing, ABC attorney Beth Wilkinson harkened back to the French Revolution to illustrate what she called the chilling effect that the renewal process was having on the network. It was, she said, like having one's “head on the guillotine,” forced to wonder “if anything we say is going to make it come down.”
“Our editorial decisions are being affected right now,” Wilkinson said, noting that the U.S. midterm elections are fast approaching. “We are watching everything that we do.”
She reiterated the First Amendment argument ABC has been making since the beginning — that it was being targeted for its content. “President Donald Trump has made his stance clear over and over again,” Wilkinson said. “What he says is because of that content, because of that speech, ABC should lose its license.
“These are blatant violations of the U.S. Constitution,” she said, calling it a threat not just to ABC but to all broadcast media.
Dimitar Georgiev-Remmel, the Department of Justice attorney, explicitly rejected the guillotine analogy.
Georgiev-Remmel argued that the court lacked jurisdiction, but that even if it decided it had jurisdiction, a preliminary injunction should still be denied. He said ABC had not established a likelihood of success on the merits of the case, and also had not established irreparable harm, because the network’s eight licenses remain valid.
Issuing a preliminary injunction at ABC’s request would mean “allowing them to sidestep” the path that Congress has set up for regulatory action appeals, Georgiev-Remmel said.
Asked by the judge what irreparable harm ABC had suffered, Wilkinson answered: “The irreparable injury is the chill, and the threat of retaliation for First Amendment speech and editorial decisions ABC makes every day.”
In its lawsuit, ABC had asked the judge to temporarily prohibit the FCC from taking any further action related to its license renewal proceedings. ABC also sought to prohibit the commission from trying to coerce or threaten the network to alter its “exercise of editorial discretion.”
"The First Amendment demands an immediate end to the Commission's retaliatory campaign," ABC attorneys wrote.
Carr, a Trump ally, ordered the early review of the stations’ licenses in April — just after a joke by ABC’s late-night host Jimmy Kimmel infuriated Trump, who called for the comedian's firing.
ABC also had been fighting Carr's efforts to make the morning talk show "The View" subject to equal-time rules. Carr defended his agency's actions against ABC by saying broadcasters have a duty to "operate in the public interest."
Government attorneys urged the court to dismiss ABC’s lawsuit, accusing the network of trying to prematurely ward off scrutiny by federal regulators.
"To foreclose the Commission from using all the tools at its disposal to investigate whether Plaintiffs are meeting their statutory and regulatory duties would seriously harm both the government and the public," Justice Department lawyers wrote.
AliKhan was nominated to the bench by President Joe Biden, a Democrat.
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Noveck reported from New York, and Boone from Boise, Idaho.