Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
So we’re talking about all of it with one of our go-to people on these things, University of Michigan law professor Leah Litman. Hey, Leah, always good to have you on.
Sargent: So at the center of this sordid story is FCC Chair Brendan Carr, who’s one of Trump’s most slavishly devoted accomplices. Whenever Trump gets upset about networks telling the truth about him, Carr is right there in the background. In the spring, Carr launched an early review of broadcast licenses at eight TV stations owned by ABC, which is a network Trump hates because of Jimmy Kimmel and other things. Leah, can you just bring us up to date on this, and what Carr is really all about?
And so this is not the first time this has happened. You know, we saw, for example, the FCC kind of try to coerce Disney to cancel Kimmel. We saw them trying to strong-arm CBS to cancel Colbert. And they do this, again, by threatening the agency’s regulatory authority to award benefits or impose punishments on companies that are subject to their control.
Litman: Yeah, I mean, I don’t know what this administration thinks DEI stands for. You know, on our podcast, we’ve joked that it’s “dicks, ex-husbands, imbeciles.” In light of the diarrhea—it’s “diarrhea for everyone, because of incompetence,” right? Like, I don’t know. But they kind of use that word as their go-to for saying, we don’t like something that you’re doing, and so we are just going to target you.
Litman: Yes, indeed. We can just toss this label out and use that to go after anyone we want.
Litman: No, absolutely. And I think the president has taken this approach to many different regulatory initiatives or prosecutions. You know, he’s tried to indict, for example, former FBI director Jim Comey, New York Attorney General Letitia James. And it’s clear that those prosecutions also serve as a warning, right? Like, do our bidding, or stand down, or you will face the penalty.
Sargent: Now, here’s the really good part. In order to show that the FCC is trying to punish ABC for its content and its viewpoints, punish it for its reporting and its speech, ABC cites one of Trump’s own tweets, in which Trump says this directly.
Now, NBC doesn’t seem to be a part of this right now, but you get the point. There, Trump said openly that ABC should be punished for what it says about Republicans. And ABC is now using this against Trump. Can you tell us what ABC has to establish here to push the FCC off its back, and whether there’s a real chance that citing something like this thing here works?
And so because the reason for the enforcement action, the reason for the investigation, could potentially make it unconstitutional, ABC is trying to establish why this investigation or review of the licenses is happening.
Litman: I would certainly hope so. And these kinds of arguments have been effective, at least in the lower federal courts, where there’s a big “OMG, he admitted” vibe to a lot of what the lower courts are doing. In cases challenging the president’s revocation of temporary protected status, lower courts said, this is unconstitutional, it was driven by racial discrimination, because look at the vile racist smears you—you, president—directed at Haitian nationals. This has also come up in the cases challenging the ban on transgender service members.
But the big question is: is the Supreme Court ever going to allow that to happen? Because of course the Supreme Court said the president’s awful statements about Haitian nationals, those were not overtly racial, and they excused that racial discrimination. And they have allowed the administration to implement the ban on transgender service members, despite the horrific smears and transphobic statements. And so there’s right now, I think, a disparity between lower federal courts saying, the president said what he said, we can’t ignore that, and the Supreme Court saying, no, actually, we can and we will, and we’ll just pretend it didn’t happen.
In another, he says, “ABC should lose its license because of what they’ve done.” So here you have Trump blurting out on Truth Social, and even in one case at a campaign rally, that he wants to weaponize the FCC against the network to censor it. It was basically an open campaign promise: elect me and I’ll censor ABC. And now he and Carr are trying to do that, right?
And in any case, we’re just going to say there is a reasonable, non-racial, non-religious reason why the president might have done this. Now, of course, they relied on the fact that that was an immigration policy where the president receives additional deference. But I am not at all convinced that they would take even, again, this specific promise to do the very specific thing that his administration is now trying to do, for a very specific unconstitutional reason, seriously and literally, and actually hold him to that, even though they absolutely should.
Litman: Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.
Litman: Of course, right? They have to be desperately begging the people around him to shut down his phone and tell him to shut the F up, because of course it’s making their jobs that much harder. It’s hard to say, well, of course we should presume that the government is acting normally. You know, there is this presumption of regularity that courts traditionally afford to the federal government, and that administration lawyers will often invoke.
Sargent: One last question about the Supreme Court. I’ve got to think they’re going to be a little more sensitive here, because it’s First Amendment and it’s broadcast licenses. It’s so clear. As opposed to something like TPS, which, you know, the president has a lot of power over immigration and so forth. And it feels to me like the Supreme Court might—let’s hope, anyway—want to be a little more solicitous of the First Amendment rights of news organizations than they might be in other cases. No?
The court has not, let’s say, protected the rights of union organizers to exercise their free speech rights to actually organize people and register people for unions, even though it’s protected the rights of the mega-rich to donate near unlimited amounts of money to elections.
Sargent: The Supreme Court really does like big corporations.
Sargent: And ABC is a big corporation.
Sargent: So it has that going for it. I want to try to get at a key thing about Trump’s corruption here. The open and explicit nature of it really is a critical piece of it, in the sense that Trump wants it known that he will, in fact, use the FCC to bully networks whose reporting displeases him.
Litman: Yeah. So I want to first talk about how it is central to his project, and how doing it openly very much seems to be a feature in their eyes. You know, it’s partially a way of normalizing the conduct. If they do it all the time, if it happens all the time, if they flood the zone, right, with BS, it’s harder to stop or challenge any of it. But another important part of it is the signaling. We are talking about, as we said, ABC, a big corporation.
I do hope that it is also part of what allows us to push back against Donald Trump, because it is much easier, I think, to organize opposition when you can point to, look at what he is doing, look at what he is saying.
Sargent: So I think there’s a big question here about whether Trump is succeeding or not in cowing the news media. And there’s like a lot of fatalism out there about this. And I get that, right? You look at The Washington Post, what happened there. You look at CBS News, what’s happening there. And there’s a lot to be kind of despairing about. But I think the story is generally a decent one, though, that aside, because the American news media is just really big and sprawling, and it’s diffuse. Yeah. And it’s robust, it’s energetic. And I think I’m seeing some of the most aggressive reporting right now on Trump that I’ve seen in, I don’t know, in my lifetime. What do you think of that? What’s your sense—is he succeeding or is he not succeeding? And where do you think this particular thing is going to go?
Here there are some big media institutions, including some like ABC or The New York Times that have opted to fight back against Trump when he targets them. The New York Times successfully quashed some subpoenas that had been directed at it over its reporting about the president’s use of the Qatari Force One, you know, the jet gifted to him. And there are also a bunch of independent media organizations that have been kind of more faithful in a lot of ways to the aggressive reporting, even earlier in the administration.
Sargent: And where do you think this is going to go with ABC? What’s your gut tell you?
Sargent: And what will that look like, basically?
And there have been lots of examples where they have elected not to appeal unfavorable lower court rulings. So even though they’ve had a bunch of success in the Supreme Court, they haven’t taken all of the cases they have lost in the lower courts to the Supreme Court. So my guess is that will be how this episode resolves.
Litman: Thanks for having me.
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