After two years in which the president played the aggressor, suing media companies from the Des Moines Register (part of the USA TODAY Network) to The New York Times, The Wall Street Journal and the BBC, the news media is turning the tables in court.

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'We can do this the easy way or the hard way'

The most prominent weathervane: ABC. The network bowed to presidential pressure by settling a defamation lawsuit in December 2024 that it likely could have won, and by yanking – if only temporarily – "Jimmy Kimmel Live!" off the air a year ago. Trump called for the comedian’s head over remarks about the assassination of conservative activist Charlie Kirk.

FCC Chair Carr piled on: “We can do this the easy way or the hard way."

Broadcasters are vulnerable to government pressure in ways other media aren’t because the public airwaves are federally regulated. If the government didn’t police who is on which channel, the chaotic free-for-all would serve no one’s interests.

Federal communications law charges the FCC with ensuring that broadcast licensees operate in the "public interest, convenience, and necessity," but explicitly bars the agency from exercising "the power of censorship."

Jimmy Kimmel says James Talarico interview won't air on TV over FCC threats

For nearly a century, the FCC’s statutory structure as a bipartisan, multimember body insulated from presidential control maintained the delicate equilibrium.

In June, however, the Supreme Court gave the president virtually unchecked authority to remove most agency heads “at will.” FCC commissioners now serve at the president’s pleasure on a body where two of the five seats are vacant.

The lone Democrat, Anna Gomez, is in “holdover” status. Because the FCC requires a three-vote quorum, Trump can’t fire her until the Senate confirms the Carr aide he nominated in August.

ABC, Disney drop bombshell in First Amendment lawsuit against FCC

After reinstating Kimmel and then facing a series of onerous FCC inquiries, ABC and its corporate parent, the Walt Disney Co., filed a First Amendment lawsuit against the agency on Aug. 18. The network said it has produced 13,000 documents for an FCC investigation of whether Disney/ABC hiring practices were “infected” by diversity, equity and inclusion efforts.

“Regardless of the outcome,” the FCC’s unusual request for ABC stations to file for early license renewal will be “immensely harmful,” the network’s brief added. “The proceedings are likely to be expensive and protracted.”

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Deep into its 46-page brief, ABC dropped a bombshell, acknowledging that the legal and financial pressure already has led to two instances of self-censorship:

“No candidate for public office has appeared on The View” since a February interview with Talarico, the same Texas lawmaker Kimmel’s planning to feature, and the FCC accused the ABC daytime talk show of violating equal-time rules.  When ABC decided not to interrupt prime-time programming to air a July address by the president (accurately predicted to be a political speech), the network streamed Trump live on its website service, “which it ordinarily would not have done,” the complaint said.

Courts take threats that chill political speech seriously. At the heart of a case that The Stanford Daily, along with 55 other student news organizations and newsroom leaders, recently won against the Trump administration, was a long catalogue of how foreign students have quit writing and asked for already-published articles to be taken down, fearing their viewpoints would cost them their legal status.

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Citing cases where exactly that happened, including those of Mahmoud Khalil and Rümeysa Öztürk, Judge Noël Wise of the U.S. District Court for Northern California wrote:

“In the United States, free speech, including the freedom to criticize the government and its leaders, is not a sign of our democracy’s fragility. It is evidence of its strength. That strength is diminished when members of our society – citizens and noncitizens alike – must self-censor and 'behave' or suffer the government’s retaliation.”

The media won landmark First Amendment victories in the 1970s by taking on government overreach. From student journalists to major networks, it’s heartening to see that attitude reborn.

When Trump blasted Welker, rather than suspending her, à la Kimmel, NBC News stood up for her. When the Pentagon fired them, Stars and Stripes employees sued.

That’s good for us all. Today, the Trump administration may be focused on immigrants and journalists. But as Wise wrote in her Aug. 28 opinion, “Tomorrow, or perhaps even today, targets may include anyone in the United States who exercises their freedom of speech to simply express opinions the government does not like.”

Lyrissa Lidsky is the Raymond & Miriam Ehrlich Chair in U.S. Constitutional Law at the University of Florida Levin College of Law. Kathy Kiely recently retired as the Lee Hills Chair in Free Press Studies at the Missouri School of Journalism.

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