At the beginning of his second term, President Donald Trump pledged to restore Americans’ ability “to speak freely in the public square without Government interference.” Yet President Trump has waged a near-ceaseless war on the liberties of the press, artists, universities, and activists. The Trump administration has also regularly attacked the media and has sought to weaponize the Communications Act of 1934 (“the Act”). The Act—the statute that governs the nation’s broadcast regulator, the Federal Communications Commission (FCC)—has been employed repeatedly against television programs offensive to executive interests, so called “fake news.” The FCC, for instance, seeks to apply the equal-time rule—which mandates that stations provide competing candidates with comparable airtime—to afternoon and late-night talk shows granting interviews to Democratic candidates. It also conducted an indecency investigation of musicianBad Bunny’s halftime performance at Super Bowl LX, following President Trump’s criticism of its purportedly “disgusting” nature and use of Spanish.
This weaponization of the Act will come to a head in a case brought by the American Broadcasting Company (ABC) and its parent, The Walt Disney Company, against the FCC in the District Court for the District of Columbia on August 18, 2026. Alleging “censorship” in the form of executive and agency retaliation, the suit will determine the future of broadcast media at the hands of an agency in thrall to an administration opposed to a fair and free press. The resolution of the case will be critical in determining the scope of the media’s expressive rights, the meaning of broadcast licensing undertaken in “the public interest,” and the FCC’s institutional independence from the dictates of the White House.
ABC v. Trump
ABC’s action against the FCC arises from an April 28, 2026, order calling in the broadcast licenses for eight ABC owned-and-operated affiliates for early renewal. Since the early 1980s, license renewal has been a largely automatic proceeding.Absent deep-seated concerns about the financial acumen or character of a licensee, incumbents have long utilized a simple “postcard application” at the end of each eight-year term.
The FCC insists that calling in these affiliates’ licenses (the expiration dates are still two-and-a-half to five years away) is “essential” to its ongoing investigation of them for unlawful discrimination and an “opportunity” to assess whether they “have been operating in the public interest, as required by their FCC licenses.” ABC, in contrast, characterizes the order as but the latest offensive in a months-long “campaign against free speech on network television” for airing content distasteful to President Trump. The suit, which names both the FCC and its commissioners in their official capacities, seeks a temporary restraining order and preliminary injunction, lest plaintiffs “suffer ongoing and irreparable injury to their First Amendment rights as a result of the threatened and retaliatory license renewal proceedings.”
The FCC responded on September 3, 2026, via a motion to dismiss for lack of subject-matter jurisdiction. Citing a line of cases interpreting the “claims-channeling provisions” of the Act that invoke the United States Court of Appeals for the District of Columbia, the FCC contends that the district court could not adjudicate plaintiffs’ claims “even where, as here, the agency has not yet issued any final, reviewable order.” More broadly, the FCC points to ABC’s putatively “deficient and nonresponsive” answers to its investigative queries, such that any attempt to halt the license renewal proceedings amounts to “taking administrative processes off the table before the Commission has seen and analyzed the voluminous evidence” of ABC’s alleged wrongdoing.
Multiple amici have lent support to ABC’s cause. The Foundation for Individual Rights and Expression and 11 other entities, such as the Cato Institute and the Society for the Rule of Law and Democracy, insist the FCC’s anti-discrimination probe into the affiliates is retaliatory and an abuse of agency authority. Contending that “the Administration’s hostility to ABC is open and obvious,” they cite National Rifle Association v. Vulloas barring “this Administration’s campaign of indirect punishment against one broadcaster’s disfavored speech.” Likewise, Frequency Forward and Media Action argue that the early renewal proceeding amounts to an unconstitutional chilling of protected speech. “If permitted to continue,” they state, “the investigation and hearing will go on for years, turning the regulatory process itself into the punishment. The purpose of this proceeding is not to gather information, but to threaten punishment for Disney’s temerity to criticize Trump and his policies, thereby constraining ABC and other broadcasters from any future revelations that might cast the administration in a negative light.”
Disputes between licensees and the FCC typically arise under the Administrative Procedure Act (APA), the body of statutes that governs how regulatory agencies implement and enforce their rules. Judicial review of purportedly unlawful agency conduct is normally limited to the administrative record, the “paper trail” of data and findings upon which the agency predicated the challenged action. If ABC is to be believed, the early renewal process is a bid to exert “maximal coercive pressure on the media company whose speech the Administration sought to curb, while deliberately evading judicial review” under the APA. ABC’s suit, in other words, hinges on proof of structurally pretextual conduct by the FCC that is absent from the administrative record—statements and patterns of behavior against ABC (and indeed, the broadcast media as a whole) suggesting that the early renewals are a mere fig leaf over unconstitutional action. Consequently, ABC v. Trump may come down to the district court’s willingness to apply what one legal scholar calls a “holistic” approach that considers statements outside the administrative record in assessing the lawfulness of agency action.
ABC may find support for its position in Lopez Bright Enterprises v. Raimondo (2024). This landmark Supreme Court case overturned Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984), which required the judiciary to defer to an agency’s “reasonable” interpretation of an ambiguous statute. Per the APA’s directive that courts “shall decide all relevant questions of law,” Lopez Bright instructed them “to independently interpret the statute and effectuate the will of Congress subject to constitutional limits.” This affords the D.C. District Court considerable latitude in assessing the extent to which the early license renewals were indeed commensurate with the vague “public interest” standard under which the ABC affiliates were licensed (discussed in greater detail below).
Within this context, ABC v. Trump stands as a crucial litmus test for the future of a free press. On October 11, 2026, for instance, Senator Bernie Moreno (R-OH) demanded an FCC probe into a purported ABC News “political hit job” on President Trump’s sons; one day later, CNN reported that the agency had commenced an investigation. The outcome of the case will answer three questions critical to the viability of civil liberties and institutionalism going forward.
Expressive rights
The first question concerns what, if any, expressive rights should be accorded television and radio broadcasters licensed by the federal government.
FCC precedent is clear: The agency cannot employ its regulatory authority to silence unfavored speech. In the 1960 Network Programming Inquiry, Report and Statement of Policy, the FCC clarified that “[a]lthough the Commission may inquire of licensees what they have done to determine the needs of the community they propose to serve, the Commission may not impose upon them its private notions of what the public ought to hear,” a formulation echoed some 30 years later by the Supreme Court. Likewise, in the 1966 Anti-Defamation League of B’Nai B’Rith Against Station KTYM proceeding, the FCC held, citing Terminello v. Chicago (1949):
[T]he public interest is best served by permitting the expression of any views that do not involve “a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” This… principle insures that the most diverse and opposing opinions will be expressed, many of which may be even highly offensive to those officials who thus protect the rights of others to free speech.
Expounding upon this formulation, the FCC pledged its intent in the 1969 United Federation of Teachers to “scrupulously… refrain from any attempt to censor the provocative programing content of a licensee, whether by license revocation, punitive fine, or other form of censure.”
Aside from such precedent is Section 326 of the Act, which specifically disclaims the FCC’s “power of censorship over the radio communications or signals transmitted by any radio station” and prohibits it from imposing any “regulation or condition” that will “interfere with the right of free speech by means of radio communication.” In 1934, Congress vested the control of wire and radio communication in a single entity. Yet it is well understood that the likelihood of agency capture warranted the erection of a doubled fence around the freedoms of speech, press, and assembly.
The public interest
The secondquestionis the meaning and limits of the phrase “the public interest.” Under Section 307 of the Act, television and radio stations are licensed by the FCC to operate according to the “public interest, convenience, and necessity.” But in the more than 90 years since Section 307 has been on the books, scholars and policymakers alike have been unable to offer a precise definition.
As with the similarly pliable “emergency,” the term “public interest” now undergirds and wrongly justifies a host of government actions. In September 2025, for instance, ABC suspended late-night talk show host Jimmy Kimmel in the wake of the Charlie Kirk assassination. FCC Chairman Brendan Carr, speaking with podcasters just before the suspension, remarked that “when you see stuff like this, I mean, we can do this the easy way, or the hard way” and mentioned “the possibility of fines or license revocation from the FCC” for affiliates who continued to run content contrary to “the public interest.” Speaking at the 2025 Conservative Political Action Conference, Chairman Carr praised President Trump’s “winning” fight against “the fake news media.” In the next breath, he added: “If you’re a broadcaster, you’ve got a license. You have an obligation to operate in the public interest. And if you’re not doing that, then you very well could lose your license. It’s not a property right, right?”
As Chairman Carr has framed the early renewal proceedings in the same way—that is, maintaining broadcasters’ “subsidized access” to the airwaves compel them “to operate in the public interest”—ABC v. Trump may finally provide a backstop to this capacious term. The agency’s own precedent supports such a delimitation: The 1959 Control of Broadcast Matter, for instance, maintained that “a licensee’s fulfillment of its public interest obligations is not judged in the light of a particular program or series of programs broadcast during a limited period of time.” The alternative is “public interest” as a mere metonym for executive whim.
Institutional autonomy
The final question is that of institutional autonomy. Since Trump v. Slaughter and the creation of a Schedule F in the civil service, which compromised the basic principles of the Pendleton Service Act of 1883, the primacy of Congress and its regulatory designees has been in jeopardy. But since the FCC—an independent regulatory agency for over 90 years—formally declared itself subordinate to the Executive Branch, will licensees be afforded meaningful due process and impartial consideration before it?
Consider the recent controversy over a series of publicly funded advertisements by the administration. One touts the dangers of “communism, socialism, and Marxism in America” before extolling the virtues of President Trump’s political agenda; another is essentially identical to a commercial from his 2024 campaign. The White House has defended these spots as “public service announcements,” insisting that they are meant to cultivate patriotism, while lawmakers and ethics watchdogs have labeled them propaganda.
While the FCC’s rules are silent on the meaning “public service announcement,” recent precedent defines the term as “an announcement for which no charge is made and serves community interests by promoting programs, activities, or services of governmental or other nonprofit organizations and is broadcast for free.” It is difficult to identify how “community interests” are served in replaying a partisan commercial at the taxpayer’s expense—much less a highlight reel for the Trump administration. And yet, according to Chairman Carr, the ads raise “no red flags.”
ABC v. Trump may hold the key to combatting such clear indicia of agency capture, checking the tendency of independent agencies to serve as regulatory rubber stamps for the executive.
Conclusion
As ABC v. Trump continues to unfold, the courts must resolve the Act’s vague phrases and open-ended constructions that regulators loyal to the administration’s agenda have strategically instrumentalized. This case raises issues vital to the ongoing struggle over the rule of law: the right of private entities to engage in the marketplace of ideas; the impartiality and apoliticality of the civil service; and the critical statutory cleavages that threaten to upset the constitutional balance of powers. Ultimately, the case is a measure for the media’s role in democratic discourse as an institution that either speaks truth to power or blithely parrots the executive ordre du jour.
Matthew L. Conaty is a doctoral candidate at the University of Pennsylvania’s Annenberg School for Communication, where he researches disaster and crisis communications systems. In addition to the Federal Communications Commission (FCC), his civil service includes postings as an assistant U.S. attorney and as chief counsel of Voice of America, the nation’s largest international broadcaster.
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