For more than fifty years, the Federal Communications Commission (FCC) never ordered a broadcaster to apply for a license renewal early. This past April, it ordered all eight ABC-owned-and-operated stations to do so, the day after President Trump demanded that ABC fire Jimmy Kimmel. The order escalated a long-running feud between the broadcaster and FCC Chairman Brendan Carr, one that Justice Neil Gorsuch cited as an example of agency power run amok, and follows years of presidential demands that ABC lose its licenses because of various editorial decisions.

Last month ABC went on the offensive. In a complaint filed by litigation titans Beth Wilkinson and Paul Clement, ABC and parent company Disney allege that the early renewal order is unconstitutional retaliation against their speech. ABC has a strong case, if it can overcome the Commission’s arguments that the court should not consider the dispute.

The complaint reads like a greatest-hits album of the administration’s assaults on ABC’s First Amendment rights. During the 2024 presidential campaign, the once-and-future President Trump repeatedly said ABC should lose licenses, including for fact-checking his debate statements. Most famously, after Jimmy Kimmel’s monologue following Charlie Kirk’s murder, President Trump demanded Kimmel’s termination and Chairman Carr warned that “we can do this the easy way or the hard way,” which prompted Kimmel’s suspension just hours later. Trump threatened revocation after an ABC reporter asked about the Epstein files. Earlier this year, the Commission opened an inquiry into the ABC program The View after Democratic candidate James Talarico appeared on the show, and has used that inquiry to pry into the show’s editorial decisions and its employees’ campaign contributions. Then on April 27, Trump called a Kimmel joke about the First Lady a “despicable call to violence” and again demanded ABC fire him. The next day, the Commission ordered all eight ABC stations to file renewal applications, in most cases four years ahead of schedule.

The Commission argues that this timing was coincidental, and the early renewal orders were a response to Disney’s failure to cooperate with an investigation into allegations of discrimination. In early 2025, the Commission’s Enforcement Bureau launched an investigation into Disney’s diversity, equity, and inclusion (DEI) practices, which it suspected of violating Commission antidiscrimination rules. Disney sought multiple deadline extensions, and the Enforcement Bureau found that both its initial response and a supplemental response fell short of the agency’s expectations, raising “considerable concerns.” The Commission explained that the Media Bureau called the stations’ licenses for early renewal to compel faster and more complete cooperation with the Enforcement Bureau’s investigation. The license renewal proceeding also offered the public the opportunity to submit relevant information, which prompted six petitions to deny to which Disney filed lengthy responses. The proceeding remains ongoing.

My sense is that Disney has the better argument. A retaliation claim has three elements: protected speech, government action that would deter a person of ordinary firmness from speaking, and causation. The first element is undisputed. The second seems solid: threatening license renewal would deter any broadcaster, and ABC has already shown the proceeding has chilled its speech. Kimmel moved his recent Talarico interview from the network to YouTube to avoid FCC scrutiny. The battle is over causation. But here, Trump and Carr repeatedly tied ABC’s licenses to its programming choices, and Carr explicitly stated ABC’s decision not to air a July presidential address would factor into the ongoing review. That shifts the burden to the FCC to show it would have acted the same way anyway. But threatening what ABC calls the broadcast “death penalty” over a “garden variety discovery dispute” strains belief.

Yet the Commission has a strong argument that the court should not reach the merits. Federal law vests courts of appeal with exclusive jurisdiction over the Commission’s licensing decisions, meaning the district court lacks authority to hear the case. ABC responds that this framing misconstrues its claim: it challenges not the future renewal order, but the process itself, which is presently harming the company by chilling its speech. This is a good response, but the leading case is unclear about whether the exception to the jurisdictional law encompasses retaliation claims, so the court could decline to hear the case.

In 2017, when Trump first suggested that networks should lose their licenses for editorial decisions, then-Chairman Ajit Pai stated that “under the law the FCC does not have authority to revoke a license of a broadcast station based on the content of a particular newscast.” The chair has changed, but the Constitution has not. On October 6, Judge Loren AliKhan will decide whether she’s the one who gets to say so.