Democrats Continue to Attack Carr's Kimmel Comments at Senate Commerce Hearing

Senate Commerce ranking member Maria Cantwell, D-Wash., said the panel needs “to hold [Carr] accountable” for his role in the Kimmel incident, as well as other media regulatory actions he's made as chairman that constitute “the kind of political interference [and] chilling effect on free speech that the First Amendment was designed to prevent.” Carr “does not have the authority to police speech … that he or the White House finds offensive,” Cantwell said, as even some Republicans believe is the case in the Kimmel incident (see 2509190059).

Senate Commerce Chairman Ted Cruz, R-Texas, didn’t appear at Wednesday's hearing, but Sen. Eric Schmitt, R-Mo., said the panel leader is “committed to having the FCC” commissioners appear soon to testify. Senate Homeland Security Committee ranking member Gary Peters, D-Mich., and Sen. Jacky Rosen, D-Nev., were among others who lamented Carr's absence. Senate Commerce is eyeing dates for an FCC oversight hearing, although congressional aides don’t expect it to happen until at least November (see 2510030062). Several Democratic leaders made Carr’s actions the focus of an unofficial hearing last week (see 2509290062).

Peters said it's “concerning to me that” Senate Commerce Republicans focused Wednesday on what he called “backward-looking” claims about Biden administration actions involving social media platforms, given what he sees as more problematic free speech threats from Carr and President Donald Trump. “This hearing is a farce,” agreed Sen. Ed Markey, D-Mass. “We're wasting time here trying to distract the American people” by examining Biden-era actions while Carr “turns the FCC into the Federal Censorship Commission.”

“ABC can suspend [Kimmel’s show] for whatever reason they want, [but] if the government coerced ABC into [it] through threats of retaliation, [that] likely violated the First Amendment,” said Communications Subcommittee ranking member Ben Ray Lujan, D-N.M. Carr has repeatedly “weaponized the FCC against broadcasters since he took office,” while the agency didn’t take similarly retaliatory actions during the Biden administration.

Precedents

Cruz said in his written opening statement that he remains “clear on my views about” Carr’s Kimmel comments. But Democrats were hypocritical to be indignant over that incident, since they failed to criticize “the Biden administration [when it] was silencing the American people” via pressure on social media companies, Cruz said. “Maybe it’s too much to ask Democrats to defend the First Amendment regardless of who is in power, not just when it is politically convenient.” He vowed that in “the coming weeks, I will be introducing legislation” to prevent future instances of government-launched “secret censorship campaigns.”

Other Republicans largely avoided discussing Carr’s actions during the hearing, although Sen. Bernie Moreno of Ohio entered into the record a 2018 letter from Cantwell and 11 other Democratic senators asking then-FCC Chairman Ajit Pai to review Sinclair's fitness to maintain its broadcast licenses (see 1804120026). Democrats’ criticism of Carr’s actions now is “decently ironic,” given that some of them sought the Sinclair review because they felt that the company was “perpetuating misinformation,” Moreno said. Lujan later countered that Pai quickly rejected that request in 2018, during Trump’s first term.

Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression, said at the American Enterprise Institute event that the FCC “has long abused its authority to achieve specific objectives,” though in the past, it has done so “by trying to act informally.” For example, Corn-Revere said, former FCC Chairman Newton Minow’s famous “vast wasteland” speech in 1961 hinted that broadcasters wouldn’t have their licenses renewed unless they appeased him. Trump’s personal lawsuits against ABC and CBS, combined with threats of FCC enforcement, “hypercharge” the administration’s ability to exert pressure and have resulted in settlements with ABC and CBS that would normally never occur, Corn-Revere added.

Carr has repeatedly pointed to the doctrine of spectrum scarcity as justifying his actions against broadcasters, but all the panelists at the AEI event said that doctrine is based on precedent in Red Lion Broadcasting v. FCC, which the current U.S. Supreme Court would likely overturn if it was reviewed now. Justice Clarence Thomas and the late Justice Ruth Bader-Ginsberg both said the precedent was bad law, but a case challenging it is unlikely to arise out of the recent Kimmel affair, said Boston College law professor Daniel Lyons. ABC would probably have standing but is unlikely to challenge the FCC, while Kimmel himself would have difficulty proving in court his suspension was due to Carr’s remarks.

Ashkhen Kazaryan, the Future of Free Speech's senior legal fellow, said there's a pattern of both parties railing against jawboning when they aren’t in power and then immediately employing it once they have control again. Neither party “is standing on principle,” she said. “What feels good as a very momentary high of not approving a merger or getting a company whose owner you don't like to settle is going to have negative effects on the democracy and on free speech.”