ABC and Trump’s FCC battle in federal court over free speech and jurisdictional issues

WASHINGTON (AP) — An ABC lawyer asked a federal judge Tuesday to block the Trump administration from an early and unusual review of its broadcast licenses, likening it to a looming execution by guillotine that was already chilling the network’s editorial decisions just weeks before the U.S. midterm elections.

U.S. District Judge Loren AliKhan did not immediately rule on ABC’s request for a preliminary injunction barring the Federal Communications Commission from conducting its early review, which she said was unconstitutional, a violation of free speech and retaliation against content that President Donald Trump doesn’t like.

WATCH: ABC Says FCC Wages Retaliatory Campaign Violating Free Speech Rights

A government lawyer argued that, procedurally, the court does not have jurisdiction over ABC’s case because it is under a different court. The government also challenged the network’s First Amendment arguments and said ABC failed to demonstrate that it suffered irreparable harm.

A decision was not expected until at least mid-October. After questioning both sides at length, she asked them to submit brief additional arguments by October 9 for the government and October 14 for the ABC.

ABC and its parent company, Disney, sued the FCC and FCC Commissioner Brendan Carr in August, several months after the commission ordered eight ABC-owned stations to submit applications to renew their broadcast licenses years ahead of schedule.

The case is one of several ongoing legal battles between Trump’s Republican administration and media outlets, including the Associated Press, over their coverage and access to executive power since Trump returned to the White House for a second term.

During Tuesday’s two-hour hearing, ABC lawyer Beth Wilkinson returned to the French Revolution to illustrate what she called the chilling effect the renewal process had on the network. It was, she said, like having “your head on the guillotine,” forced to wonder “if something we say is going to make it fall.”

“Our editorial decisions are affected right now,” Wilkinson said, noting that the US midterm elections are fast approaching. “We monitor everything we do.”

She reiterated the First Amendment argument ABC has made all along – that it was targeted for its content. “President Donald Trump has made his position clear time and time again,” Wilkinson said. “What he’s saying is that because of this content, because of this speech, ABC should lose its license.

“These are blatant violations of the U.S. Constitution,” she said, calling it a threat not only to ABC but to all broadcast media.

Dimitar Georgiev-Remmel, the Justice Department lawyer, explicitly rejected the guillotine analogy.

Georgiev-Remmel argued that the court lacked jurisdiction, but that even if it ruled it did, a preliminary injunction should still be denied. He said ABC had not established a likelihood of success on the merits of the case, nor established irreparable harm, because all eight of the channel’s licenses remained valid.

Issuing a preliminary injunction at ABC’s request would “allow them to circumvent” the path set by Congress for regulatory action appeals, Georgiev-Remmel said.

Asked by the judge what irreparable harm ABC had suffered, Wilkinson replied: “The irreparable harm is the cold shoulder and the threat of retaliation against the First Amendment speech and editorial decisions that ABC makes every day.”

In its lawsuit, ABC asked the judge to temporarily enjoin the FCC from taking any further action related to its license renewal process. ABC also sought to prohibit the commission from trying to coerce or threaten the network into changing its “exercise of editorial discretion.”

“The First Amendment requires an immediate end to the Commission’s retaliatory campaign,” ABC’s lawyers wrote.

Carr, a Trump ally, ordered an early review of stations’ licenses in April — just after a joke by ABC late-night host Jimmy Kimmel infuriated Trump, who called for the comedian to be fired.

ABC had also fought Carr’s effort to subject the morning show “The View” to equal time rules. Carr defended his agency’s actions against ABC by saying broadcasters have a duty to “operate in the public interest.”

Government lawyers urged the court to dismiss ABC’s lawsuit, accusing the network of trying to prematurely avoid scrutiny from federal regulators.

“Preventing the Commission from using every tool at its disposal to verify whether plaintiffs are complying with their legal and regulatory obligations would seriously harm the government and the public,” Justice Department lawyers wrote.

AliKhan was nominated to the bench by President Joe Biden, a Democrat.

Noveck reported from New York and Boone from Boise, Idaho.