Disney finally did what a lot of other companies should have done by now: they acted proactively, and they took the Trump administration to court. Corporations hold the strongest legal ground to stop what this administration is doing to American speech, stronger than universities, stronger than law firms, stronger than nonprofits and hospitals and anybody else living on federal money, and until this week almost none of them were willing to stand on it. I said this when I was writing my book and I’ve said it since. The private sector was always going to have to be the one, because the private sector is the only actor with the balance sheet, the shareholders, and the constitutional footing to make this fight expensive enough to matter.
In late April, the FCC ordered the eight television stations Disney owns outright to file their broadcast license renewal applications years early. Those licenses weren’t due between 2028 and 2031. Carr gave the stations thirty days to assemble filings that ordinarily take months, and the Commission hadn’t demanded an early renewal like this in over fifty years. The stations filed on May 28 and put on the record that they were doing it under protest. The public comment window closed August 5 with more than 150,000 comments, the overwhelming majority in ABC’s favor by the network’s count. Six conservative groups filed against renewal in June. Disney went to court in Washington this week asking a judge to shut the whole proceeding down.
Carr says this is about Disney’s diversity practices. He told CNBC the early renewal had nothing to do with the First Amendment. The order came down a week after Jimmy Kimmel made a joke about the First Lady, and eight months after Disney had already yanked Kimmel off the air once under pressure from this same chairman.
As part of its investigation into The View, the FCC’s Media Bureau sent a letter of inquiry to Disney’s Houston station demanding every internal communication among the show’s booking staff, segment producers, executive producer, and on-air co-hosts discussing any political candidate over a two-year period. It demanded the messages two named co-hosts sent their executive producer about a single booking decision. And it demanded a list of every political donation made by employees and co-hosts over the past four years, with dates.
I worked in network television news. Booking is a daily scramble conducted by phone and text under deadline. A federal agency demanding four years of a host’s political giving, and the private messages a co-host sent her producer, is compiling a dossier on a newsroom. Regulation of the public airwaves has never meant this and does not mean it now.
It’s already working. The View hasn’t booked a candidate for political office since early February. ABC has declined to air candidate clips it would otherwise have used, because those clips could be turned into evidence against the licenses. And ABC carried the President’s July 16 address on election security on its streaming platform, a decision the network now concedes it made while weighing the risk of retaliation. A newsroom is altering its coverage of an election because a regulator is standing over it, four months out from a midterm.
The DEI pretext is not a legal category. Diversity and inclusion is not affirmative action. There is no mandate, no quota, no statute compelling it. It’s a philosophy about how you recruit, how you retain, and how you keep a workplace functional. Outlawing it means outlawing management. It means outlawing language competency, cultural training, market research on the customs of a country you’re about to sell into. Every multinational on earth has been doing this work for decades under other names, because you cannot run a factory in India without knowing when the holidays are. The administration is running the Civil Rights Act of 1964 in reverse, taking a statute written to dismantle racial exclusion and pointing it at the people trying to remedy exclusion. That’s the trick. It has been the trick all year.
Nobody is pulling the lever Citizens United handed them. That decision held that the First Amendment protects corporate political speech. If a corporation has speech rights sufficient to spend unlimited money on elections, it has speech rights sufficient to hold a philosophical position about how it staffs and trains its own workforce, and the government cannot condition a broadcast license on abandoning that position. Disney’s lawyers, and they hired serious ones, aren’t running that argument. They’re running straightforward First Amendment retaliation, which is the cleaner claim. But somebody should run the other one, because the Court that gave us Citizens United would have to explain what it meant if it wants to rule the other way.
I keep hearing that you can’t call this administration communist and fascist in the same breath, that the two are different things. Are they, though? State control over what the public is permitted to see and hear is communist practice. Punishing a broadcaster for disloyalty to the leader is fascist practice. This administration is running both, simultaneously, against a cartoon studio. The people campaigning this fall, Abdul El-Sayed in Michigan and everyone else on a general election ballot, should say that out loud and then read the FCC’s document demands into the record. Not as a warning about what could happen. As a description of what is happening.
Disney is not a hero here. Disney is a company with this is allegedly causing an extended family member a family in my own extended circle grief over accommodations for a young disabled worker, and Disney is a company that folded on Kimmel before it stiffened. What Disney did this week was basic math. It calculated that capitulating costs more than litigating, which is the calculation every general counsel in the Fortune 500 has been avoiding for eighteen months.
The math was always available. Disney just finally did it.
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