In 1963, four years before Jimmy Kimmel was born, the Supreme Court drew a constitutional line. The government is free to encourage and persuade private entities to support its policies, the court said. But the First Amendment forbids the government from using coercion backed by threats of punishment to suppress speech.
That line has been tested by ABC’s decision to suspend Mr. Kimmel after the chairman of the Federal Communications Commission, Brendan Carr, criticized his commentary on the killing of the conservative activist Charlie Kirk.
It is not clear whether or how Mr. Kimmel’s suspension might lead to a First Amendment case against the government or what precise question it would pose. Mr. Carr appeared to threaten both the network and its affiliates with regulatory action, though his agency’s power is mostly over the licenses of local stations.
But constitutional scholars said Supreme Court cases over more than 60 years indicate that the Trump administration’s threats this week were in tension with the conventional understanding of what the Constitution allows.
Mr. Carr, speaking on a podcast on Wednesday, appeared to say his agency was ready to act.
“Frankly, when you see stuff like this — I mean, we can do this the easy way or the hard way,” he said. “These companies can find ways to change conduct and take action, frankly, on Kimmel, or there’s going to be additional work for the F.C.C. ahead.”
President Trump, speaking to reporters on Air Force One on Thursday, said hosts of late-night shows were overwhelmingly critical of him and their employers should pay a price. “I would think maybe their license should be taken away,” he said, apparently referring to the licenses held by stations affiliated with the offending networks.
The First Amendment does not constrain ABC, which is a private entity. It can air what it chooses.
But, as the Supreme Court ruled in 1963, the Constitution’s protection of free expression also prohibits the government from leveraging its power over private parties like the network to censor speech.
The court has continued to explore and reinforce the distinction between persuasion and compulsion, ruling just last year that even indirect threats from powerful regulators cross the constitutional line.
The 1963 case Bantam Books v. Sullivan involved a commission established by Rhode Island lawmakers concerned that young people might be reading obscene books. The commission sent notices to a wholesale book distributor in the state, listing disfavored publications and noting the commission’s “duty to recommend to the attorney general” violations of the state’s obscenity laws. The notices also said that lists of blacklisted books had been “circulated to local police departments” and that the distributor’s cooperation would “eliminate the necessity” of any referral for prosecution.
Still, the commission had no independent power to punish the distributor and retailers. All it did, it said, was try to persuade them to decline to sell immoral books.
Four publishers sued, and the Supreme Court ruled that the commission’s actions, though indirect and informal, had violated the First Amendment.
“People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around,” Justice William J. Brennan Jr. wrote. “It would be naïve to credit the state’s assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.”
The Supreme Court reaffirmed the decision last year, citing it with approval and at length.
“Ultimately,” Justice Sonia Sotomayor wrote for a unanimous court whose composition remains unchanged, “Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”
That case flipped the politics of the current moment. It was brought by the National Rifle Association, which said a state official in New York had violated the First Amendment by encouraging companies to stop doing business with the group after the 2018 school shooting in Parkland, Fla.
A unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit, in New York, ruled against the N.R.A.
Judge Denny Chin, writing for the panel, acknowledged that government officials may not “use their regulatory powers to coerce individuals or entities into refraining from protected speech.
“At the same time, however,” he wrote, “government officials have a right — indeed, a duty — to address issues of public concern.”
The official’s actions were on the right side of the constitutional line, Judge Chin wrote. Key documents, he said, “were written in an evenhanded, nonthreatening tone, and employed words intended to persuade rather than intimidate.”
The N.R.A. appealed and was represented at the Supreme Court by the American Civil Liberties Union. “The fact that the A.C.L.U. is defending the N.R.A. here only underscores the importance of the free speech principle at stake,” David D. Cole, then the national legal director of the civil liberties group, explained at the time.
The case was at an early stage when it reached the justices, who were required to accept the N.R.A.’s version of the facts. (It later emerged that parts of the N.R.A.’s account were open to question.)
The factual disputes did not affect the court’s vehement legal conclusions.
“A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead,” Justice Sonia Sotomayor wrote for the court. “In doing so, she can rely on the merits and force of her ideas, the strength of her convictions and her ability to inspire others. What she cannot do, however, is use the power of the state to punish or suppress disfavored expression.”
The N.R.A. case involved Maria T. Vullo, a former superintendent of the New York State Department of Financial Services. Justice Sotomayor wrote that Ms. Vullo had “direct regulatory and enforcement authority” over New York insurance companies and financial service institutions.
That is a significant power, but it is not comparable to the chairman of a federal agency with vast authority over the national discourse, to say nothing of the president of the United States.
“Generally speaking,” Justice Sotomayor wrote, “the greater and more direct the government official’s authority, the less likely a person will feel free to disregard a directive from the official.”
The Supreme Court returned the case to the Second Circuit, which ruled against the N.R.A. in July on different grounds.
The Vullo decision illuminates the dispute over Mr. Kimmel’s suspension, said Robert C. Post, a law professor at Yale, noting that the Supreme Court had “recently and firmly announced” that government officials cannot rely on coercion to suppress disfavored speech.
“Yet, to all outward appearances,” Professor Post said, “that is exactly what is happening now as government regulatory bodies subservient to Trump threaten to crack down on those who oppose conservative views.”
The Supreme Court has said that government regulation of broadcasters, given the scarcity of the airwaves, can be more extensive than that of, say, the internet or newspapers. Mr. Carr alluded to that on Wednesday, saying of local stations that “they have a license granted by us at the F.C.C., and that comes with it an obligation to operate in the public interest.”
But none of that “can justify the F.C.C. trying to pressure ABC into suspending Kimmel,” Eugene Volokh, a fellow at the Hoover Institution at Stanford, wrote in a blog post on Thursday.
In another Supreme Court decision last year, Murthy v. Missouri, the majority dodged the question of whether the Biden administration had violated the First Amendment by urging social media companies to delete what the government said was misinformation about topics like the coronavirus pandemic and the 2020 election.
In that case, the court ruled that the challengers — Missouri and Louisiana, along with five individuals — had not shown that they were suffering the sort of direct injury that gave them standing to sue. Were Mr. Kimmel to sue, he might well overcome that hurdle but would have to prove that Mr. Carr’s statements were coercive threats and that ABC acted in response to them rather than independently.
In dissent in the social media case, Justice Samuel A. Alito Jr. wrote that the court should have should have ruled that the Biden administration was on the wrong side of the constitutional line.
“What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive,” Justice Alito wrote. “And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the court’s failure to say so.”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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