William A. Brewer III on the First Amendment and FCC Authority
The First Amendment safeguards our most fundamental freedoms – freedom of speech, association, and the press by placing limits on the government’s power to interfere with their exercise. However, these protections would mean little if public officials – unable to silence disfavored speech directly – could accomplish the same result through the selective exercise of regulatory authority.
That distinction lies at the heart the legal dispute involving ABC, its parent company Disney, and the Federal Communications Commission. ABC and Disney are challenging the FCC’s decision to accelerate the license renewal proceedings for eight ABC-owned television stations years ahead of schedule, alleging that the move constitutes retaliation for protected expression. The FCC disputes that characterization, maintaining that its actions serve legitimate regulatory purposes.
In its complaint, ABC invokes the Supreme Courts unanimous 2024 decision in National Rifle Association v. Vullo, a case which our firm brought and led alongside the ACLU. In Vullo, the Supreme Court held that government officials cannot "use [their] power…to punish or suppress disfavored expression."
The principle is as important as it is straightforward: regulatory authority cannot become an instrument for accomplishing what the First Amendment expressly forbids.
Our experience in Vullo and First Amendment advocacy reinforced a conviction that has guided our practice for decades. Constitutional protections are not measured by how comfortably they accommodate popular speech – but by how faithfully they protect expression that those in power would prefer to suppress.
Whether the FCC crossed that constitutional line is now for the courts to decide, but the principle at stake is larger than any one dispute. The government cannot be both the regulator of speech and the arbiter of which speech deserves protection.
Originally posted on LinkedIn. View here.