Disney Lawyer Says FCC Holding a ‘Guillotine’ Over ABC’s Head

A lawyer for ABC and its parent company, Walt Disney Co., urged a judge to block the Trump administration’s early review of its licenses, comparing the process to a “guillotine” hanging over the broadcaster’s head.

US District Judge Loren AliKhan in Washington is hearing arguments Tuesday on Disney’s request for an order pausing the Federal Communications Commission’s so-called early renewal process while the media giant’s lawsuit proceeds.

The case is seen as a test of claims that the Trump administration is leveraging federal agencies to harass the president’s perceived political enemies and critics, particularly with respect to speech and editorial decisions that historically have enjoyed robust protection under the First Amendment.

Disney lawyer Beth Wilkinson said the process is clearly an attempt to chill the broadcaster’s free speech rights after President Donald Trump’s frequent criticism of ABC late night host, Jimmy Kimmel as well as the network’s news coverage and other editorial decisions.

ABC must “sit with our head on the guillotine and wonder if anything we say is going to make that come down,” Wilkinson said at the hearing.

Tuesday’s hearing came several weeks after a blowup over Trump’s decision to ban three media organizations from the White House over their coverage of his administration. A federal judge ordered the White House to temporarily restore access to journalists from those outlets while the case goes forward, finding that, at a minimum, US officials failed to give them enough advance notice and opportunity to object.

ABC and Walt Disney sued the FCC in August, arguing that the commission under Chairman Brendan Carr had taken the unusual step earlier in the year of initiating license renewal reviews for eight stations owned by ABC years before they were set to expire.

The FCC’s lawyer, Dimitar Georgiev-Remmel, disagreed with the guillotine analogy, saying ABC’s licenses will remain in effect during the process and any subsequent legal challenges. The judge is also weighing the FCC’s request to dismiss the case.

Read More: FCC Asks Judge to Toss Disney Suit Over ABC License Renewals

Leading up to the renewal probes, Trump and White House officials had repeatedly criticized ABC, in particular Kimmel and daytime talk show The View, for what they claimed was political bias. The FCC order in April announcing the licensing review came one day after Trump posted online that Kimmel “should be immediately fired” after the comedian made a joke about the president and First Lady Melania Trump.

The judge said Tuesday she had never watched an episode of The View in response to Wilkinson explaining the chilling effect after the network was criticized for having Texas Democratic Senate candidate James Talarico on the show. AliKhan said she wanted more information about how typical it is for politicians to appear on the show so she can better understand the alleged chilling effect.

ABC contends that statements by Trump and Carr and the timeline of events make it “abundantly clear” that the licensing reviews are part of an unconstitutional effort to silence criticism and other speech that the president and his administration don’t like. The broadcaster said that the threat of having its licenses revoked hung over every decision it made, and that it should be allowed to operate without that looming threat until the court case is finished.

The FCC countered that the early licensing renewal proceedings are part of a legitimate investigation into whether there are discriminatory employment practices at Walt Disney, dovetailing with the Trump administration’s opposition to “diversity, equity and inclusion,” or DEI, policies in the public and private sectors. The commission accused the media company of failing to provide regulators with the information they needed for that discrimination probe, and said that the licensing reviews would help them collect that material.

The commission said that the reviews of ABC stations are in line with its broad authority to determine if broadcast licenses are in the “public interest.” It disputed that comments by Trump and Carr criticizing Kimmel and other ABC programming decisions were proof that the administration was using the licensing process as a pretext to retaliate against the broadcaster.

The case is American Broadcasting Co. v. Federal Communications Commission, 26-cv-2902, US District Court, District of Columbia.