The First Amendment has been in the news a lot since January 2025. And the news in many cases reflects our country’s political polarization.
On one side of the political spectrum people clamor for more First Amendment protection to allow them to more openly advocate their Christian beliefs. We have seen this in Supreme Court cases such as 303 Creative LLC v. Elenis, where the court held that Colorado could not require a website designer to comply with state anti-discrimination law if it required her to create websites celebrating gay marriages. We’ve seen it when Texas passed Senate Bill 10, which requires public elementary and secondary schools to display a poster or framed copy of the Ten Commandments in every classroom. 
On the other side, many people are concerned with efforts which they contend constitute censorship of criticism of the Trump Administration. A recent proceeding involving The Walt Disney Company before the Federal Communications Commission (FCC) provides an insight to those concerns. 
It’s worth reviewing the case to understand what’s going on. The immediate proceeding concerns the FCC’s order that eight ABC-owned local television stations (Disney owns ABC) file for early license renewal. Critics of the administration see this as part of a larger strategy. The chronology goes like this. 
In late 2024, an outside organization filed a complaint with the FCC alleging that ABC had violated the FCC’s news distortion policy in its coverage of the presidential campaign, specifically the presidential debate which ABC journalists moderated. Agency staff reviewed that complaint and dismissed it in January 2025, finding it contrary to the First Amendment and that it failed to assert a set of facts that, if true, would violate FCC rules. 
In March 2025, the FCC opened an investigation into Disney and ABC’s diversity, equity and inclusion practices. The FCC did this despite a previous ruling by the D.C. Circuit Court of Appeals, which had invalidated a pre-existing FCC rule on equal employment. In that case, the court described the inherent coercive danger of investigations on alleged discrimination by licensing agencies such as the FCC. 
Following Charlie Kirk’s assassination, Jimmy Kimmel made a joke in his monologue about how the “MAGA crowd” was desperately trying to characterize Kirk’s murderer as “anything other than one of them.” This comment caused FCC Chairman Brendan Carr to push for Kimmel’s removal. He told broadcasters such as Sinclair and Tegna, “[w]e can do this the easy way or the hard way. These companies can find ways to take action on Kimmel or there is going to be additional work for the FCC ahead.” Shortly after, ABC pulled the Kimmel show from the air. Public outcry pressured Disney and ABC to bring him back.  
The FCC next accused The View of violating a rule requiring non-news programs to offer equal opportunities to political candidates to appear once an opponent visited the program. The FCC took this action despite the commission’s previous ruling on the issue.  In 2002, ABC requested and obtained a declaratory ruling from the FCC’s Mass Media Bureau confirming that The View qualified as a bona fide news interview program. That declaratory ruling remains in full force and effect. 
An ABC owned television station in Houston, Texas got caught up in this dispute. On February 11, 2026, the FCC’s Media Bureau sent a letter of inquiry to KTRK Television concerning the appearance of senatorial primary candidate James Talarico on The View, which aired on KTRK on February 2. The letter of intent inquired whether the station had placed a record of the Talarico appearance in the station’s political file and whether KTRK Television took the position that The View qualified as a bona fide news interview program. KTRK Television responded on February 12 that The View qualifies as a bona fide news interview program and, accordingly, the station had not placed a record of the Talarico appearance in the station’s political file. KTRK was proceeding under the 2002 ruling, unaware that the rules were being changed. 
On March 26, the Media Bureau sent KTRK a supplemental letter of inquiry stating that it needed additional information concerning the matter. The Bureau based its need for further inquiry on its assertion that “19 ABC affiliates serving parts of Texas all filed a notice of Mr. Talarico’s February 2 appearance on The View.” In the supplemental letter, the FCC stated, “the assertion by KTRK Television, Inc. that The View qualifies for the bona fide news interview exception is not a position uniformly held by broadcasters that air the program.” But the FCC neglected to note that while certain ABC affiliates documented Talarico’s appearance in their online public inspection files, they made those filings more than two weeks after Talarico’s appearance and apparently at the request of the FCC, which reportedly promised to waive enforcement for the late filing. The supplemental letter concluded with this order: “[W]e direct KTRK Television, Inc. to produce and submit to the commission a petition for declaratory ruling regarding The View that satisfies the statutory requirements for a bona fide news exemption.” On May 7, ABC submitted its petition for declaratory ruling. 
So, what concerns arise from this chronology? Several things:
1. Precedent is shaky. The FCC had previously ruled that “licensees airing programs that meet the statutory news exemption … need not seek formal declaration … that such programs qualify as news exempt programming.” The FCC’s order seemingly ignores that prior ruling.
2. Was the system gamed? The FCC’s action was apparently based on The View’s supposed failure to present political views from the right side of the political spectrum. But as ABC’s FCC petition notes, in the past two seasons, The View has invited JD Vance, RFK, Jr., Lindsey Graham, Josh Hawley, Elon Musk, Kevin McCarthy and Marco Rubio.  Each of them declined to appear. Was this an effort to set up The View? 
3. Is there consistency? While the FCC has targeted The View, it has said nothing about any number of issues arising from conservative talk radio. It has ignored the fact that two Texas radio stations air The Mark Levin Show. On February 16, 2026, Levin’s show featured an interview with Dan Patrick, who is running for re-election for Lieutenant Governor, although neither station uploaded any documents concerning Patrick’s appearance into their 2026 online public inspection files. In Houston, KPRC 950 AM broadcast an interview with Texas Attorney General primary candidate Chip Roy as part of The Glenn Beck Program on February 18, 2026, without including any documentation of the appearance in its public inspection files. Chip Roy also appeared on the Guy Benson Show on February 11, 2026, which airs on several Texas radio stations, likewise did not place any information about this appearance in its public inspection files. 
So what is the impact on the First Amendment? In the short run, it forces ABC to “defend” The View for adhering to clear FCC guidance.  While ABC is likely to prevail, if not at the FCC level, then surely at the Court of Appeals, it will need to employ expensive lawyers and endure a lengthy court battle. In the long run, it may intimidate other broadcasters.  There is legitimate concern that broadcasters who object to the administration’s agenda are at risk of punishment, but broadcasters who advance the agenda are home free. The First Amendment is supposed to guard against this. Ultimately, we will likely look to the Courts for the answer.

Jack Greiner is one of the area’s leading authorities on media law and First Amendment matters. He has represented clients in public records disputes, access to courts, open meeting cases and a variety of defamation cases. Jack is also an experienced commercial litigator, handling contract disputes for clients in state and federal courts in Ohio and elsewhere.