In April, the Federal Communications Commission (FCC) ordered Disney’s ABC-owned stations to file renewal applications for eight broadcast licenses years ahead of their ordinary 2028- through-2031 expiration dates, with filings due within thirty days. The Commission said the accelerated timeline was necessary for its investigation into possible Communications Act and FCC rule violations. Disney and ABC sued in August, alleging the process is retaliation for protected editorial activity.

The dispute is about press freedom, and it has been covered that way. It also raises a recurring administrative law problem: what happens when the alleged punishment is not a final order but the open-ended proceeding that precedes one?

The Commission has not denied a renewal, imposed a forfeiture, or reached the merits. It has issued a directive requiring early filings and placed the licenses under accelerated review. The stations continue broadcasting, as they may while a timely application is pending. But the costs of responding, the uncertainty for affiliates and advertisers, and whatever adjustment the company makes in the meantime all accrue during the proceeding rather than at its conclusion.

Disney’s suit puts a threshold question in view. Whether the early-filing directive is final agency action, or otherwise reviewable before the renewal proceeding ends, is now something a court will have to decide. The doctrinal tools available for answering it were not built with this fact pattern in mind.

Under Bennett v. Spear, agency action is final when it (1) consummates the decisionmaking process and (2) either determines rights and obligations or produces legal consequences. The directive to Disney sits awkwardly against the first prong, since it opens a proceeding rather than closing one. The second prong is less clear than it might appear. The order does not revoke or condition the licenses, but it does impose an immediate procedural obligation to prepare and file applications years early, which is not nothing.

Abbott Laboratories asks about fitness for judicial decision and hardship from withholding review. An ongoing investigation produces hardship that is real but diffuse, and fitness tends to improve as the harm accumulates. A media law attorney told CNN that renewal denials are exceptionally difficult to obtain and that a hearing plus judicial review would take years, during which the broadcaster operates normally.

That was offered as reassurance. It reads better as a description of the problem. If the burden is the pendency itself, the eventual favorable ruling arrives after whatever adjustment the agency hoped to induce has already occurred.

Disney can litigate on that timeline. Most regulated parties cannot, which is why the mechanism deserves attention independent of how this case resolves.

Two First Amendment frameworks are relevant, and neither was designed for a burden that consists of a proceeding staying open.

The unconstitutional conditions cases address the government distributing a benefit on terms that burden protected expression. I have some familiarity with this line. In Matal v. Tam, the U.S. Patent and Trademark Office USPTO) denied my band’s registration under the Lanham Act’s disparagement provision. The government argued in part that registration was a subsidy it could condition as it wished. The Court rejected that characterization and held the provision unconstitutional as viewpoint discrimination. Registration confers legal advantages, and the government may not distribute them according to whether it approves of the applicant’s message. That doctrine most comfortably addresses identifiable conditions attached to a benefit, which is not quite what is happening when an agency reopens a question about a benefit already granted.

The coercion cases address the government using regulatory leverage to accomplish suppression. Bantam Books v. Sullivan struck down a Rhode Island commission’s practice of notifying distributors that certain publications had been found objectionable, paired with the implied threat of enforcement. NRA v. Vullo held unanimously that a New York regulator’s alleged pressure on banks and insurers to sever ties with an advocacy organization stated a claim.

Vullo supplies an anti-evasion principle: the government may not use regulatory authority to accomplish indirectly what the First Amendment forbids directly. Both leading cases involve intermediaries, though the broader anti-retaliation doctrine is not confined to that setting. The open question here is not whether an intermediary is required. It is how the anti-evasion principle applies when the alleged pressure is the government’s own continuing process.

Disney’s complaint leads with Vullo, which is the closest available fit and still not a precise one. It’s worth noting that the NRA established that precedent against a Democratic official, a reminder that these mechanisms are not partisan property and remain available to whoever holds the relevant office next.

The same posture appears across agencies and levels of government, which suggests something structural:

• Ohio’s Senate Bill 1, effective June 2025, created compliance and reporting duties including a complaint mechanism tied to intellectual diversity requirements. Kent State’s provost estimated compliance would cost $1.5 to $2 million annually. University records showed seven complaints filed by early March. In a spring 2026 survey of thirty-eight Kent State faculty, thirty-seven percent said they had changed how they teach and twenty-four percent said they had changed what they teach. Those figures are self-reported and drawn from a small sample, but they describe the mechanism at issue: behavioral adjustment preceding any adjudication.
• At the Texas Tech University System, a Faculty Senate survey found changes or requested changes affecting 277 courses, with about half of respondents reporting they altered material themselves and roughly a quarter reporting that a university official requested it.
• At Florida International University, seven students were disciplined after silently wearing “ICE OFF FIU” shirts at a campus event. The students alleged, and a federal judge concluded at the preliminary injunction stage, that the protest was not materially disruptive. The penalties included producing a reflective video and holds that could block registration and diplomas. The injunction was issued in August, months after the March protest and after the disciplinary process was underway.
• A July executive order directed Interior and the Park Service to place temporary signage along NPS-maintained access routes outside the Smithsonian’s National Museum of American History, stating that exhibits should be renovated. The Smithsonian is an independent trust instrumentality governed by its own Board of Regents, which constrains direct control, so the order operated on adjacent land rather than inside the museum.

These arise under different theories (e.g., retaliation, unconstitutional conditions, public employee speech, student speech). Sorting by theory obscures the common feature, which is that the government held something the regulated party needed and let the pendency of a decision substitute for the decision.

None of this is new. In September 1972, Nixon told John Dean and H.R. Haldeman that “the Post is going to have damnable, damnable problems out of this one,” noting the company’s television holdings. Charles Colson was directed to determine which Washington Post Company licenses were approaching renewal. Renewal challenges followed against WJXT in Jacksonville and WPLG in Miami. The challenges failed and the stations kept their licenses. The episode is now understood as an abuse of regulatory authority, and it is understood that way partly because enough time has passed for the politics to become irrelevant to the analysis.

The obvious objection is that every investigation is burdensome and expensive, and that a doctrine treating burden as sanction would disable legitimate oversight. That objection is correct as stated, which means the claim must be narrower than it first appears.

I am not arguing that initiating a proceeding constitutes final agency action. The better formulation is that where an agency plausibly initiates an unusually burdensome proceeding in retaliation for protected expression, and where the practical burden arises from the proceeding’s duration and credible threat rather than from any completed sanction, courts should have a route to reach the First Amendment claim before the process itself accomplishes the alleged objective.

That formulation needs limits, and several are available. Evidence linking the action to protected speech or viewpoint. Departure from ordinary agency timing or practice. A concrete, legally operative burden such as compelled early filings rather than informal scrutiny alone. A chilling effect that is substantial and non-speculative rather than assumed. And relief tailored to prohibit retaliation rather than to immunize the party from neutral enforcement going forward.

It is worth separating three questions that tend to blur together. Whether the government acted with retaliatory purpose is a merits question. Whether any vehicle exists for review before the proceeding concludes is a justiciability question. What a court could enjoin without disabling ordinary investigation is a remedial question. The second is the one currently doing the least work, and it is the one that determines whether the first ever gets reached.

The alternative is a doctrine under which the most effective way to burden protected expression is to open a file and leave it open. That is not hypothetical. It describes what several agencies are currently doing, and the likelihood that eventual rulings will favor the regulated parties is not a defense of the arrangement. It is an argument that the ruling is not where the action is.

Simon Tam is the founder of The Slants and was the respondent in Matal v. Tam, 582 U.S. 218 (2017). He writes and speaks on First Amendment and intellectual property law.