Comedian Jimmy Kimmel, whose late-night show on ABC was “indefinitely suspended” on Wednesday after threats by the Trump administration over his comments on the Charlie Kirk assassination, may yet return to the public airwaves as Disney wrestles with the fallout from his removal. If he does not, the First Amendment is on his side.
The Supreme Court unanimously ruled as recently as last year that government officials could not coerce third parties to retaliate against constitutionally protected speech without violating the First Amendment. And while the high court’s conservative reputation is well-earned, especially over the last year, there is good reason to believe that they would side with Kimmel on free-speech grounds.
The saga began earlier this week when Kimmel commented upon the murder of Charlie Kirk, a prominent conservative influencer. A gunman shot and killed Kirk with a hunting rifle while he spoke at a campus event at Utah Valley University last week; police arrested a suspect a few days later after he allegedly confessed to the killing to his family. Footage of his shooting, including extremely graphic clips recorded at close range, circulated widely on social media.
Grief and fear follow naturally in the wake of a public figure’s killing. Conservative media figures and the Trump administration also responded with seething anger. The White House blamed Kirk’s death on liberal and left-wing Americans and political groups, even though local prosecutors have found no evidence to suggest the gunman was acting in concert with anyone else. Right-wing influencers have mounted campaigns to identify and “cancel” people who criticized or refused to mourn Kirk on social media after his death.
Kimmel’s initial comments about Kirk’s death were neither criticism of him nor celebration of his death. “Instead of the angry finger-pointing, can we just for one day agree that it is horrible and monstrous to shoot another human?” he posted on Instagram on the day of the shooting. “On behalf of my family, we send love to the Kirks and to all the children, parents, and innocents who fall victim to senseless gun violence.”
In his Monday night opening monologue, Kimmel echoed some of those themes while criticizing conservatives for exploiting Kirk’s death. “We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it,” he told the audience. “In between the finger-pointing, there was grieving.”
Those comments drew a negative response from some conservative figures, who claimed that Kimmel had falsely identified the alleged shooter as a pro-Trump conservative. Kimmel’s comments during the monologue could also be read as noting that the alleged shooter came from a conservative pro-Trump family.
None of those reactions, however, were as important as the hostile response from Brendan Carr, the chairman of the Federal Communications Commission. In a podcast interview with right-wing commentator Benny Johnson, Carr threatened to issue fines and revoke stations’ broadcast licenses if they continued to carry Kimmel’s show.
“There’s actions that we can take on licensed broadcasters,” Carr said. “And frankly, it’s really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast and Disney to say, ‘Listen, we are going to preempt, we aren’t going to run Kimmel anymore until you straighten this out. Because we licensed broadcasters are running the possibility of fines or license revocations from the FCC if we continue to run content with a pattern of news distortion.’”
“This is a very, very serious issue right now for Disney,” Carr continued. “We can do this the easy way or the hard way. These companies can find ways to take action on Kimmel or there is going to be additional work for the FCC ahead.” That amounted to an unambiguous threat against Kimmel to use the power of the federal government to punish a comedian for his political remarks.
How can the FCC do that? One of the agency’s duties is to approve broadcast licenses for television networks. Most media companies do not require a license to release their products: Book, newspaper, and magazine publishers don’t have to get them, nor do film studios or internet companies. Television and radio stations are different because they are distributed by radio frequencies, which are an inherently finite resource.
Two broadcasters cannot share the same wavelength. As a result, the federal government regulates radio spectrum use to maximize its benefit and prevent chaos. In exchange for a license, federal law requires stations to operate for “public interest, convenience, or necessity.” The FCC also has the power to levy fines against broadcasters if they violate certain obscenity standards; the 2004 Super Bowl halftime show and Howard Stern’s perennial clashes with the agency in the 1990s and 2000s are probably the best known examples.
Fines and revocations aren’t the only tool that Carr can use to make life difficult for television broadcasters. Nexstar, which operates nearly three dozen ABC affiliate stations, said on Wednesday that it would preempt Kimmel’s show “for the foreseeable future” because of his “offensive and insensitive comments.” Andrew Alford, the president of Nexstar’s broadcasting division, even said that the move was “in the public interest,” echoing the FCC standard.
Nexstar is particularly vulnerable to pressure from the FCC right now because it is seeking the agency’s approval for a $6.2 billion merger with Tegna, which also owns local affiliate broadcasters. The Trump administration has already used merger approval to reshape media companies in their own image. While its parent company sought approval earlier this year, CBS reached a $16 million settlement with Trump to end a bogus lawsuit against 60 Minutes and announced this summer that Stephen Colbert’s late-night show would conclude its decade-long run. Trump celebrated Colbert’s ouster on social media after it was announced and added “Kimmel next!”
It is important to explain exactly what the problem is here. If ABC fired Kimmel because he wanted to do something different in the 11 PM hour on weeknights, or because he didn’t think Kimmel was particularly funny, or because Kimmel took the last slice of pizza in the Disney cafeteria, it would not be a First Amendment issue. (Kimmel’s contract might provide him with some protections against dismissal, but that would be his problem in those scenarios, not the country’s.)
If ABC’s affiliate stations—the local television networks owned by other companies that carry ABC programming—merely found Kimmel’s comments repugnant and declined to broadcast future episodes in protest of them, that would also not be a First Amendment issue. Boycotting has been a proud American tradition since the colonists refused to buy British tea. More importantly, as a dispute between private companies, the First Amendment simply does not apply. Sinclair, a conservative media outlet that owns the most affiliate stations in the country, also preempted Kimmel’s show and demanded that he apologize to Kirk’s family and make a donation to Turning Point USA.
Even if Carr had merely joined in a chorus of criticism of Kimmel’s remarks, that would not necessarily be a First Amendment issue. Trump himself has made social-media posts for years where he criticizes entertainment figures and late-night comedians. Those posts may have been beneath the dignity that his office used to hold, but they were not First Amendment problems by any stretch of the imagination.
Carr crossed the line by unambiguously threatening to use the FCC’s powers to punish ABC, its local affiliates, and Kimmel for his political speech. You don’t even really have to take my word for it—you can just listen to the man himself. “Should the government censor speech it doesn’t like?” he wrote on Twitter in 2019. “Of course not. The FCC doesn’t have a roving mandate to police speech in the name of the ‘public interest.’” Local affiliate networks still followed his lead soon thereafter.
Institutions bend the knee to the Trump administration’s coercive tactics for multiple reasons. Sometimes they agree with the White House and the pressure campaign gives them an excuse to use with other stakeholders. Sometimes they do it out of genuine fear of reprisal. Some do it because they think they won’t prevail if they bring a lawsuit, given the Supreme Court’s current ideological balance. The last one is especially true in cases involving diversity, equity, and inclusion measures, for example, since the conservative majority is particularly hostile to them.
It would be a mistake to extend that last presumption to the First Amendment. As I noted last month, the Roberts Court has many sins, but weakening free-speech protections has not historically been one of them. The court has consistently held the post-1960s line on maintaining First Amendment protections for even the most repulsive figures and beliefs. In 2011, the court even sided with Westboro Baptist Church when it brought a First Amendment challenge to a law that prohibited protests at military funerals.
“Speech is powerful,” Chief Justice John Roberts wrote for the court in Snyder v. Phelps. “It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
A more recent case, National Rifle Association v. Vullo, is even more apropos for Kirk’s situation because it involved coercive efforts by government regulators to stifle political expression. The case arose from then-New York Governor Andrew Cuomo’s widely publicized campaign against the NRA. Cuomo leveraged New York’s status as a financial capital and his control over the state’s insurance regulator to pressure insurers to cut ties with the NRA’s Carry Guard insurance program.
The NRA responded by suing the state for violating its First Amendment rights, arguing that Cuomo’s authoritarian tactics infringed upon its constitutional right to political advocacy. In a 9-0 decision last May, the Supreme Court agreed. Justice Sonia Sotomayor, writing for the court, noted that the court’s precedents had been clear on the matter for at least the last sixty years. “Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors,” Sotomayor wrote for the court in Vullo.
ABC, Nexstar, and the affiliates cannot violate the First Amendment because they are private companies, of course. Nor did the FCC directly penalize or remove Kimmel on Wednesday. By coercing broadcasters to remove him from the airwaves, however, Carr clearly violated the First Amendment—and, along the way, broke his oath to uphold the Constitution as a public official.
Kimmel’s case may not result in litigation. ABC’s brief statement only said that it was “indefinitely suspending” him, not cancelling his show altogether, which leaves open the possibility that he could return to the airwaves soon. (The growing backlash to its decision to take him off the air may make “indefinite” shorter than it sounds.) Kimmel, for his part, has not publicly commented on his future since last night’s announcement. If this incident does mark the end of his ABC career, he might have a new one as a First Amendment plaintiff.
The post Jimmy Kimmel’s New Best Friend Is the Supreme Court appeared first on New Republic.
