This is an excerpt from an interview with Sen. Ed Markey, D-Mass., on the Mixed Signals from Semafor Media podcast, recorded after Jimmy Kimmel was suspended indefinitely by ABC, under pressure from FCC Chairman Brendan Carr. Watch the full conversation here.
Max Tani: What do you think this means for the FCC moving forward? Say, a President Newsom, or a President Pritzker, or any Democrat appoints a chair who essentially uses the same tactics? What kind of precedent does this set?
Sen. Ed Markey, D-Mass.: Well, it sets a terrible precedent. It sets a precedent that’s not unlike the precedent that was set by Mitch McConnell when he just started to process Supreme Court Justices at only 51 votes, not needing any Democrats at all. And that’s now a precedent that the Democrats will use. And we did use, in terms of Ketanji Brown Jackson.
So here you have the same kind of new precedent that’s being set, where the FCC is weaponized. Now, right now, Democrats do in fact still stand by the traditional use of the First Amendment as a protection for free speech. But you know, as you’re going forward, you don’t know who is going into the White House from either party.
Maybe not two years or three years from now, maybe it’s a decade from now, or two decades from now. This is gonna be a terrible precedent that is being set right now, that, in the hands of an unscrupulous politician, Democrat or Republican, could be used as a political weapon in the same way that Trump is using it right now.
When Democrats retake control of Congress and have control of the White House again, do you see a world in which you pass legislation, new rules, essentially to rein in the FCC?
I think those rules and regulations already exist. I think if ABC had held, they would’ve won in court. I think if CBS had held, they would’ve won in court. I think the Wall Street Journal’s gonna win in court. I think the New York Times is gonna win in court.
WilmerHale, the Boston law firm, when other New York firms like Paul Weiss were bending the knee, WilmerHale sued, and they won. They won in court.
I think that the protections are there. And I think that ultimately it would be a very difficult precedent to be set by the Supreme Court if they wanted to give this kind of unfettered power of censorship to the Federal Communications Commission, regardless of who was president.
We’d be taking us back truly to George Orwell, to 1984, in terms of the control over speech in a society.
What you’re saying, though, essentially is that this is not necessarily a legal problem so much as it is a problem of the FCC intimidating these companies, which are then waving the white flag and saying, “I give up here.”
The companies have to have the courage not to capitulate.
They would win. Ultimately, they’re just afraid of, in the meantime, what would be the price they would have to pay?
In terms of other business that they had before the Federal Communications Commission, that was unrelated to this incident. That somehow or other, all of a sudden, their request for a merger or for some other transaction was now slowed for a year or two years or three years, causing irreparable harm, but with no recourse that the company would have.
So that’s my fear, that they would win. The rules are strong. The First Amendment is sacrosanct. The FCC doesn’t have this kind of authority, but they’re so far not willing to do it at the network level.
Listen to the full interview on Mixed Signals from Semafor Media here.