Carr, Trump threaten broadcasters unconstitutionally, experts attest, but the play's the thing

Late last week, on Sunshine Week, former Federal Communications Commission (FCC) officials, civil society organizations, and First Amendment scholars organized by D.C.-based TechFreedom, sent a letter to FCC Chairman Brendan Carr asserting the unconstitutionality of threats to revoke broadcast licenses and to prosecute broadcasters for treason.

I joined the letter, which observed that the Communications Act of 1934, while allowing the government broad discretion to regulate "as public convenience, interest, or necessity requires," also disallows censorship.

At risk of exhausting the word "unprecedented," that's the best way to describe the strong-arm tactics of the Trump Administration that have wrought havoc with late-night comedy and hammered historically stalwart network news into conformity. Accusing media of treason for not favorably spinning the Iran war is beyond the pale.

Early in the history of U.S. telecommunication regulation, the U.S. Supreme Court upheld the government power to regulate in the public interest. The Court, like the public, was wary of seemingly miraculous new communication technologies. And transmission over unseen electromagnetic waves posed real technical challenges, such as interference and scarcity.

Even when the civil rights era sparked a sea change and invigoration in First Amendment jurisprudence, the peculiar prerogative of public broadcasting regulation persisted. 

Researchers and social activists raised alarms about the impact of television on child development. With "the first televised war" in Vietnam as backdrop, many commentators theorized a causal link between television and social unrest. Accordingly, First Amendment law enshrined the principle of "media balkanization," meaning government regulatory power varied by medium, as between, for example, a newspaper and a TV station.

Late in the 20th century, the status of the internet in the schema of media balkanization was much debated. The internet blurred traditional lines, such as between print and broadcast, and as between journalist and ordinary citizen. As the internet became pervasive in American life, and the technology improved toward handheld recording and video streaming, the prospect of internet regulation seemed ever less akin to broadcast licensing and more akin to censorship. 

Thus, in the 1990s, the Supreme Court charted a course away from disparate treatment of the internet. Still, balkanization doctrine has never been addressed definitively in the digital age, much less abolished. Internet abuses, from revenge porn to social media addiction, continue to bolster arguments for regulatory models tailored to the online environment. And conventional broadcasters still have a foot in the bear trap of FCC licensing, as the agency nears its centennial.

Carr and Trump's threats thus occur at a nadir of constitutional confidence in the government power to regulate by way of broadcast licensing.

Yet constitutionality might be beside the point. A lesson Trump learned well in a lifetime of litigation is that the powerful economic actors that dominate our society fear uncertainty and risk more than they fear impact and loss. That is to say, the Sword of Damocles is more dangerous for its potential than for its blade. 

The threat to censor, or to impose transactions costs in resisting censorship, has proven effective in compelling commercially minded media corporations to toe the official line. 

And therein lies an especially pernicious threat to free speech, because our legal system, thus far, has proven profoundly ill equipped to counter.

Big Law cowardice calls legal licensure into question

The WAMU podcast 1A put on an excellent show Monday on the White House threats against law firms.

The show featured Princeton University Professor Deborah Pearlstein, Politico reporter Josh Gerstein, and Elias Law Group Chair Marc Elias.

Highlights for me:

• Pearlstein questioned the ethics of the firms that have caved to Administration pressure. How can a client trust Paul Weiss to provide zealous representation, she asked, when the firm so readily caves to political pressure?
• Elias called the deals struck by Paul Weiss and Skadden, inter alia and respectively $40 million and $100 million payoffs in legal services, "cowardly" and "obscene" and questioned whether the practice of law should continue to be protected by the exclusivity of licensing.

Agreed and agreed. I suggest moreover that the weakness of the legal profession and its willingness to sell out for the bottom line has been the American way already for decades. That Big Law has locked down the profession and lobbies anti-competitively to keep it that way—thereby denying access to legal services, legal education, and legal careers to ordinary Americans, while building and bolstering an anti-democratic corporatocracy—is nothing new to those of us who toil away on the hamster wheels beneath the status ceiling.

It's simply Trump's shameless gambit that has exposed the rot.

In the less cowardly vein, Perkins Coie, WilmerHale (Court Listener), and Jenner & Block (Court Listener) are litigating against the executive orders targeting law firms. I anticipate signing on to an amicus brief of law professors in support of the plaintiff motion for summary judgment in the Perkins Coie matter in the U.S. District Court for the District of Columbia.

Update, Apr. 3: Law Professors' Amicus Brief in Perkins Coie v. DOJ (D.D.C. filed Apr. 3, 2025).

Researcher seeks to ease persistent anticompetitive constraints on indie films in online environment

Yaleth Calderon, a film school graduate and candidate for the California bar, has published a law review note on antitrust, online technology, and independent filmmaking.

Are There Plenty of Movies in the Sea?: How a Revision of the Terminated Paramount Decrees Could Benefit the Market for Independent Filmmakers appears in the latest issue, volume 20, page 111, of the UMass Law Review. Here is the abstract:

In the early years of filmmaking, the Supreme Court passed the Paramount Decrees as a set of rules prohibiting certain practices by major production companies that restrained competition within the industry. The creation of the internet has not only changed the way society has consumed media, but it has also affected the opportunities for filmmakers to share their works with the world. In 2020, the Paramount Decrees were overturned, dramatically limiting the distribution channels, creative control, and marketing opportunities held by independent filmmakers. This note outlines the injury felt by independent filmmakers and proposes specific rules inspired by the Paramount Decrees that the Federal Trade Commission could enact to mitigate some of the adverse effects of the decision.

The journal is transitioning to a new online publication platform, so volume 20 is not yet online. The new platform is expected to launch in summer 2025. Meanwhile, Calderon generously has made the piece available to Savory Tort readers here.

In an author's note, Calderon wrote that "[t]his article is an attempt to contribute to the ever-changing challenges towards film distribution in the digital era."

Calderon is an alumna of my comparative law class, in which it was a pleasure to have her. She received her B.A. in Cinema and Digital Media and English, with an emphasis in literature, criticism, and theory, from the University of California Davis. Last year, she served as a judicial extern at the L.A. Superior Court. After finishing law school this spring, Calderon plans to return to her home Los Angeles to practice law in California.

Calderon's subject matter is dear to my heart, too. Morgan Steele, my daughter, works in film in Los Angeles and has directed shorts. She just made a cameo in an Instagram promo (below) for The Gorge (streaming today on AppleTV+ (subscription wall)). Paul McAlarney, my friend and former TA and RA, now a New York lawyer, was an independent filmmaker before law school.

Exactly as Calderon recognizes, the streaming environment has multiplied the potential for independent distribution in film, but anticompetitive practices in the market have precluded the full realization of that potential, to the detriment of both creators and viewers.

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