A First Amendment Legend Eviscerates Brendan Carr With Substance And Style

from the i’d-throw-my-computer-in-a-lake dept

We’ve been covering Brendan Carr’s censorial ambitions for a long time now. When Trump first picked him to chair the FCC, we warned people that the “free speech warrior” branding was a total sham. We later dug into the letter from a massive coalition of 80+ legal scholars, former FCC officials, and civil liberties groups detailing how Carr’s threats fly in the face of the First Amendment. Hell, just this morning Karl wrote about how Carr is still plotting to punish Jimmy Kimmel for mocking President Trump. Meanwhile, Carr has responded to the criticism with smirking emojis and culture-war memes on X, treating the whole thing as performative trolling for an audience of one.

But now, First Amendment lawyer Bob Corn-Revere has published an open letter to Carr that is, frankly, one of the most devastating things I’ve read in years. And you really should go read the whole thing.

While Carr has mostly laughed off or ignored criticism of his many First Amendment violations, a letter from Corn-Revere (beyond the incredible prose of the letter) may hit a bit different given his stature within the First Amendment world. He has famously spent decades fighting in the trenches of the hardest, most politically uncomfortable First Amendment cases in the country. He represented Larry Flynt’s Hustler Magazine in the landmark Hustler v. Falwell case. He defended 2 Live Crew in the obscenity prosecution over As Nasty As They Wanna Be. He was counsel in FCC v. Fox Television Stations, the Supreme Court case that effectively ended the FCC’s broadcast indecency regime. There are many more famous cases on his resume as well. This is someone who has spent his entire career defending speech, including in cases where it was genuinely offensive, deeply unpopular, and legally novel — because that’s what actual First Amendment commitment requires.

Oh, and he served as Chief Counsel to former FCC Chairman James Quello, so he knows how the FCC works from the inside.

So when this person tells Brendan Carr that he has betrayed his professed values, it carries a weight that Carr’s thumbs-down emojis can’t dismiss. The letter opens by pointing to the cautionary tale of Pam Bondi’s sudden firing as Attorney General:

Pam Bondi’s sudden and ignominious end as Attorney General is an important cautionary lesson about what happens to officials in this administration who over-promise in order to curry favor with the man they see as their boss, but who under-perform because of the limits of their authority.

Bondi promised the President she would prosecute his political enemies and failed miserably. The President rewarded her misplaced loyalty by denying her the graceful exit she sought, and instead fired her during a cross-town limo ride to watch a Supreme Court argument.

You have recently threatened to revoke the licenses of broadcasters who air what you call “fake news,” which apparently includes any skeptical reporting about the war in Iran—something you know you cannot do legally.

My advice? Don’t get into a car with the president anytime soon.

That line sets the tone for everything that follows — a pointed warning from someone who’s been inside the institution and watched Carr’s transformation up close, not someone lecturing from a safe distance.

From there, Corn-Revere walks through exactly how Carr has become the precise opposite of the person he used to claim to be, quoting Carr’s own prior statements back at him:

As you may recall, shortly after you were named to head the Federal Communications Commission, I offered you some unsolicited advice in the form of an open letter entitled “A Plea for Institutional Modesty.” I suggested you should be circumspect in your assertions of power over broadcasters because “you don’t have as much power as you may think,” and flexing your regulatory muscles would conflict with both the Communications Act and the Constitution.

But as was clear from your initial acts as chairman and statements you made while campaigning for the job, your quest for political advancement overrode any previous commitment to First Amendment values. Gone were the days when, as a commissioner, you said things like “a newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them,” or that “inject[ing] partisan politics into our licensing process” is “a deeply troubling transgression of free speech and the FCC’s status as an independent agency.”

I never expected you would heed my gratuitous advice, but had no idea how thoroughly you would betray your former (professed) values. Instead, you emerged as a Bizarro World caricature of yourself, threatening owners of broadcast networks with summer stock Don Corleone impressions and devoting much of your social media activity to jawboning. It is as if you set out to prove that the real mental health crisis in America isn’t about teens on Instagram, but public officials on X.

If someone of BCR’s stature said any of that about me, I might log off the internet forever.

The letter is full of these moments where Corn-Revere combines deep legal knowledge with rhetorical skill matched by very few. Take his description of Carr’s reliance on the long-dormant “news distortion” policy — a regulatory zombie that only exists because the FCC never formally killed it off after eliminating the Fairness Doctrine decades ago:

The news distortion policy is like a phantom limb after the FCC amputated the fairness doctrine—it is not really there in substance, but you still seem to feel you can walk on it.

Your smug social media posts about how broadcasters will be held to their public interest obligations “on your watch” ignores this history, but your claim that “the opposition to holding broadcasters accountable to the public interest comes increasingly from those unfamiliar with longstanding FCC precedent” is even worse, because you know it is a bald-faced lie.

The letter also hammers home a point we’ve made repeatedly: the actual, messy consequences of Carr’s performative bullying, and shows how spectacularly it has backfired over and over again. After Carr strong-armed Disney into suspending Jimmy Kimmel Live:

Protesters picketed outside the gates of the Magic Kingdom, and an estimated 7.1 million people cancelled subscriptions to Disney-owned streaming services Disney+ and Hulu over the controversy—at about twice the usual churn rate.

ABC affiliate group owners Sinclair Broadcasting and Nexstar Media Group, who had business before the Commission, and who dutifully followed your demand, also lost money. It turns out that advertisers will not pay as much for spots during reruns of Celebrity Family Feud as during Jimmy Kimmel Live!, and Sinclair revenue dropped a reported 16 percent for the quarter. Nexstar also suffered losses, although the amounts were not disclosed.

The result? The suspension ended a little more than a week after it began and Kimmel triumphantly returned to the air to his highest viewership in over a decade. Kimmel’s comeback garnered 6.3 million broadcast viewers and roughly 20 – 26 million views on social media within 24 hours.

His attempt to manipulate equal opportunity rules to silence Stephen Colbert went even worse:

In January, you caused the FCC staff to reinterpret whether candidate interviews on certain talk shows were exempt from the equal opportunities rule, reversing decades of precedent.

You apparently were miffed that candidate interviews on certain TV shows did not trigger “equal time” requirements for their opponents under exemptions to the rule Congress adopted in 1959. Yet mysteriously, you said there was no need to apply your reinterpretation to conservative talk radio interviews.

But your main target of this move, Stephen Colbert, outsmarted you. He ridiculed your reinterpretation of the equal opportunities rule on air, and gleefully transmitted his interview with Texas Senate candidate James Talarico on The Late Show’s YouTube channel, which is beyond the FCC’s jurisdiction. The interview got over seven million views overnight (more than three times the on-air viewership), Talarico immediately received $2.5 million in campaign contributions, and won his primary.

Carr’s tactics are unconstitutional and tactically stupid. He keeps creating the very outcomes he’s supposedly trying to prevent — even as some less strong-willed news orgs buckle under his threats or pre-censor themselves to avoid his performative wrath.

But the part of the letter that really sticks with me is the section on Carr’s legal knowledge — specifically, the massive gap between what Carr actually knows and what he pretends to believe. Corn-Revere lays out the full chain of Supreme Court precedent cutting back on the FCC’s assumed authority over broadcast content — and then lands this:

But you know all this. Just as you know the FCC eliminated the fairness doctrine four decades ago, which is the regulatory progenitor of the “news distortion policy” you now love to cite (but only against broadcasts you perceive as critical of this administration).

This matters because it removes the escape hatch of ignorance. When politicians misstate the law, you can at least entertain the possibility they just don’t know better. Carr has been an FCC commissioner for nearly a decade. He practiced communications law. He knows what he’s doing is legally indefensible, and he knows his smug social media posts about “the law is clear” are, as Corn-Revere puts it, “a bald-faced lie.”

The letter ends by looking at what all of this does to Carr’s legacy, and it lands with a quiet brutality that no amount of trolling can deflect:

Your recent appearance before the Conservative Political Action Conference is a prime example, where you explained the president is “winning” against the media by listing several media personalities who have left their jobs, including (as you put it) “sleepy eyed Chuck Todd.” I should not have to remind you of this, but it is a poor and pathetic leader who measures “winning” by what he thinks he has destroyed rather than by what he has managed to build.

And:

As I wrote in my first open letter, selling out your (professed) values represents short-term thinking. I noted that “officials who have tried to muzzle the press for short-term political gain have not been treated well by history,” and “if I were your adviser, this is not how I would want history to remember you.” Now, to the extent you will be remembered at all, it will most likely be mainly as a South Park character.

I wish you had listened.

Carr will likely ignore this, much like he brushed off the coalition letter, his own past statements, and basically every legal guardrail he’s encountered since taking the chair. That’s his whole game — the threats, the memes, the emojis, the audition tape for whatever comes next.

Still, the record is there now, written by someone whose First Amendment track record makes Carr’s look like a cheap Halloween costume. And unlike Carr’s social media posts, this letter will age well.

There’s a lot more in the letter. Go read the whole thing. You won’t regret it, even if Brendan Carr would likely wish to censor it like he wishes to censor Jimmy Kimmel.

Filed Under: 1st amendment, bob corn-revere, brendan carr, donald trump, fcc, free speech, jimmy kimmel, news distortion