• by Wendy Davis , Yesterday

Citing the First Amendment, former Federal Communications Commission officials and free speech watchdogs are urging a federal judge to halt the commission's early review of ABC broadcast licenses in eight markets, including New York and Los Angeles.

"The Commission's actions here signal a retaliatory effort to punish ABC-owned-and-operated stations for speech the administration dislikes," the ex-FCC officials say in a friend-of-the-court brief filed Thursday with U.S. District Court Judge Loren L. AliKhan in Washington, D.C. Eighteen bipartisan former officials joined that brief, including former Chairs Dennis Patrick (a Republican appointed by President Ronald Reagan), Alfred Sikes (a Republican commissioner appointed by President George H.W. Bush) and Thomas Wheeler (a Democratic commissioner appointed by President Barack Obama).

"Absent intervention from this Court, Chairman Carr may keep the Sword of Damocles that these proceedings constitute hanging over the Plaintiffs’ heads for as long as he likes," they add.

They are backing ABC's request for a court order declaring the FCC investigation unconstitutional and an injunction prohibiting the agency from continuing with a proceeding that could lead to license terminations.

Earlier this month, the FCC urged AliKhan to reject ABC's complaint, arguing that a court shouldn't intervene while the agency was still analyzing the evidence.

The dispute stems from the FCC's demand earlier this year that the network immediately seek to renew its broadcast licenses in eight markets -- even though they weren't set to expire until between 2028 and 2031.

The FCC said at the time that it was conducting the review as part of an investigation into alleged "unlawful discrimination" -- meaning diversity, equity and inclusion efforts -- by the network. Chair Brendan Carr has specifically said the review isn't related to content.

But ABC claims in its lawsuit against the FCC that it's actually retaliating against the network for speech the Trump administration doesn't like.

The agency launched the license-renewal probe one day after Trump said in a Truth Social post that Disney and ABC should "immediately" fire Jimmy Kimmel over a joke that Trump characterized as a "despicable call to violence." (In the joke, which aired two days before the April White House Correspondent's Dinner, Kimmel said, "Mrs. Trump, you have a glow like an expectant widow.")

The former FCC officials back ABC's interpretation.

"The timing of the Kimmel joke, the President’s criticism, and the subsequent renewal order impacting all ABC-owned-and-operated stations betray that the offered justification is pretext for the

Chairman's continued campaign of suppressing disfavored speech," they argue.

They add that a license renewal probe doesn't further an investigation into alleged employment discrimination.

"The license renewal application does not request information on employment issues," the officials argue. "The FCC also has the tools to open an investigation, subpoena witnesses, and require the production of evidence without ordering an unprecedented early renewal proceeding."

A broad coalition of First Amendment groups including Foundation for Individual Rights and Expression, Public Knowledge and Reporters Without Borders is also siding with ABC.

Among other arguments, those groups contended in a separate friend-of-the-court brief that allegations regarding a network's employment practices don't justify review of its broadcast licenses.

"For purposes of this license renewal proceeding, the FCC’s attempt to invoke its EEO [equal employment opportunity] rules exceeds its authority," they argue.

The organizations also argue that the renewal proceeding "is an exercise in political retribution" that violates the First Amendment, and urge AliKhan to look at the context of the FCC's move -- including Trump's repeated calls to revoke broadcast licenses. Most recently, Trump said ABC and NBC should lose their licenses because they didn't broadcast on air his July speech about election integrity.

AliKhan hasn't yet indicated when she will issue a ruling.