Brendan Carr Isn’t Going to Stop Until Someone Makes Him

In the wake of Jimmy Kimmel’s suspension, experts say the FCC commissioner’s conduct is flatly unconstitutional. They also expect him to keep going.

In what has become an all-too-regular display from Brendan Carr, the Federal Communications Commission chairman used a podcast appearance Wednesday to flex his regulatory power. In this instance, he threatened action against broadcasters that refused to punish Jimmy Kimmel for remarks he made on his ABC show Monday night.

“We can do this the easy way or the hard way,” Carr said on former Turning Point USA contributor Benny Johnson’s podcast on Wednesday. “These companies can find ways to change conduct to take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.”

Since taking over the FCC at the beginning of the year, Carr has tested how far the agency can limit speech without ever quite formally censoring it. By leveraging his position as chairman, he has relied on informal threats and regulatory incentives to keep broadcasters in line with the Trump administration’s politics—and experts say Carr won’t end this campaign until someone stops him. For now, it’s not clear who’s even willing to try.

“He’ll push it until he’s stopped. Congress has been silent on this, and there hasn’t been a basis to get to court,” former FCC chair Tom Wheeler tells WIRED. “He’s been very artful in not making formal decisions that are appealable to the court, but instead having these informal, coercive activities that are not appealable, and so until Congress or the courts say he can’t, he’ll keep pushing.”

Over the past eight months, Carr—a formerly light-touch telecom regulator turned MAGA hardliner—has shown how far he’s willing to take this crusade. He has threatened to revoke broadcast licenses for outlets the administration sees as “distorting” news content, targeting Comcast outlets over news coverage of Kilmar Abrego Garcia’s deportation in April. He opened investigations into NPR and PBS underwriting announcements, alleging that they crossed into commercial advertising. Carr oversaw the merger between Paramount and Skydance and extracted concessions on CBS’s editorial work, pressuring the company to do away with its DEI policies and promise “viewpoint diversity” in coverage. (David Ellison, son of billionaire Trump supporter Larry Ellison, founded Skydance and became Paramount’s chair and chief executive officer following the merger.) At the same time, Donald Trump was suing CBS for having edited a 60 Minutes interview with Kamala Harris; after Paramount paid out $16 million to settle the suit, CBS said it would end Stephen Colbert’s show next spring.

“The FCC under Brendan Carr uses mergers and business interests of media companies as leverage to extract concessions, extract bribes, and extract censorship,” says Seth Stern, director of advocacy at the Freedom of the Press Foundation.

Carr did not immediately respond to a request for comment.

While Carr’s threats have chased social media companies and cable networks, they’ve hit companies with business before the FCC the hardest. Nexstar, which owns dozens of ABC affiliate networks, was one of the companies to pull Jimmy Kimmel Live! just hours after Carr’s Wednesday threat. The company is currently seeking approval from the FCC for a $6.2 billion deal to buy Tegna, which owns networks in major markets including Austin, Texas, and San Diego, California. Sinclair, another major broadcasting company, also relies on the FCC to periodically renew its licenses and allocate the company spectrum.

To Genevieve Lakier, a professor of law at the University of Chicago whose research focuses on free speech, Carr’s threats against ABC appear to be “a pretty clear-cut case of jawboning.” Jawboning refers to a type of informal coercion where government officials try to pressure private entities into suppressing or changing speech without using any actual formal legal action. Since jawboning is typically done in letters and private meetings, it rarely leaves a paper trail, making it notoriously difficult to challenge in court.

This Kimmel suspension is a little different, Lakier says. During the podcast appearance, Carr explicitly named his target, threatened regulatory action, and within a matter of hours the companies complied.

“The Supreme Court has made clear that that’s unconstitutional in all circumstances,” says Lakier. “You’re just not allowed to do that. There’s no balancing. There’s no justification. Absolutely no, no way may the government do that.”

Even if Carr’s threats amount to unconstitutional jawboning, though, stopping him could still prove difficult. If ABC sued, it would need to prove coercion—and however a suit went, filing one could risk additional regulatory retaliation down the line. If Kimmel were to sue, there’s no promise that he would get anything out of the suit even if he won, says Lakier, making it less likely for him to pursue legal action in the first place.

“There’s not much there for him except to establish that his rights were violated. But there is a lot of benefit for everyone else,” says Lakier. “This has received so much attention that it would be good if there could be, from now on, some mechanism for more oversight from the courts over what Carr is doing.”

Organizations like the the Freedom of the Press Foundation have sought novel means of limiting Carr’s power. In July, the FPF submitted a formal disciplinary complaint to the DC Bar’s Office of Disciplinary Counsel arguing that Carr violated its ethical rules, misrepresenting the law by suggesting the FCC has the ability to regulate editorial viewpoints. Without formal rulings, companies affected by Carr’s threats would be some of the only organizations with grounding to sue. At the same time, they have proven to be some of the least likely groups to pursue legal action over the last eight months.

In a statement on Thursday, House Democratic leadership wrote that Carr had “disgraced the office he holds by bullying ABC” and called on him to resign. They said they plan to “make sure the American people learn the truth, even if that requires the relentless unleashing of congressional subpoena power,” but did not outline any tangible ways to rein in Carr’s power.

“People need to get creative,” says Stern. “The old playbook is not built for this moment and the law only exists on paper when you’ve got someone like Brendan Carr in charge of enforcing it.”

This vacuum has left Carr free to push as far as he likes, and it has spooked experts over how far this precedent will travel. Established in the 1930s, the FCC was designed to operate as a neutral referee, but years of media consolidation have dramatically limited the number of companies controlling programming over broadcast, cable, and now streaming networks. Spectrum is a limited resource the FCC controls, giving the agency more direct control over the broadcast companies that rely on it than it has over cable or streaming services. This concentration makes them infinitely easier to pressure, benefitting the Trump administration, Carr, but also whoever might come next.

“If political tides turn, I don’t have confidence that the Democrats won’t also use them in an unconstitutional and improper matter,” says Stern. The Trump administration is “really setting up this world where every election cycle, assuming we still have elections in this country, the content of broadcast news might drastically shift depending on which political party controls the censorship office.”

Makena Kelly is a senior writer at WIRED focused on the intersection of politics, power, and technology. She writes the Politics Lab newsletter that helps you make sense of how the internet is shaping our political reality—sign up here. She was previously at The Verge, CQ Roll Call, and the … Read More