from the wasn’t-jawboning-bad? dept
There are multiple ways into this story, but almost all of the reporting on what’s happened claims that Disney pulled talk show host Jimmy Kimmel’s show “indefinitely” over comments that Kimmel made about Charlie Kirk. But that leads most people to assume that Kimmel said something unkind about Kirk or in some way celebrated his death. But he did not. You can see the segment here (assuming Disney doesn’t pull it):
Here’s the full transcript of the relevant section, which is just a few seconds:
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 also made fun of the clip of Trump being asked how he was grieving, to which Trump responded:
I think very good, and by the way you can see over there all the trucks, they just started construction of the new ballroom for the White House which is something they’ve been trying to get for 150 years and it’s gonna be a beauty.
They also showed a clip of Trump on Fox News being asked about “revenge” and somehow twisting that to the false claim that California has no ballot boxes, and another clip about Kash Patel trying to claim he was doing a good job with the investigation into Kirk’s killing.
Literally nothing in there is celebrating Kirk’s death or speaking ill of Kirk in any way.
But the thing that the MAGA world is really desperate to avoid is having anyone suggest that Robinson might not have been indoctrinated by “leftists.” They are so desperate to blame the attack on “the left,” (despite little evidence to support that) that they decided to attack Kimmel for even pointing out that MAGA was bending over backwards to deny that the shooter was “one of them.”
In the wake of the shooting, both ends of the political spectrum rushed (in an unhealthy way) to look for evidence that the shooter was “radicalized” by extremists at the other end of the political spectrum. This often included doctored evidence. But what evidence was obtained suggested that neither story was accurate and (as is so often the case with lone shooters) his agenda had no deep political component to it, and was just deeply steeped in online meme culture. Robinson himself admitted in messages later released that he basically put meme text on bullet casings for the joke of it all.
In context, Kimmel’s statements were quite benign.
But that didn’t stop FCC boss Brendan Carr—who spent years pretending to be a “First Amendment warrior”—from going on yet another MAGA podcast and claiming that Disney could “lose its license” over this. Carr claimed that there was a “concerted effort to lie” about the shooter, which is just a total misrepresentation of reality.
There were, as in any chaotic breaking news story, attempts to understand what little information is revealed, and which people try to fit into the larger story. In this case, some people interpreted information that was coming out in one way, in some cases, they interpreted it a different way. And yes, confirmation bias and preconceived notions could have played into that, but that’s how breaking news always works and it’s 100% protected by the First Amendment.
Carr then suggests that the FCC can use the “public interest” obligation of public spectrum (TV and radio broadcasters, but not internet or cable TV) to threaten to pull licenses for airing Kimmel’s segment. This is beyond nonsense. As FIRE (the Foundation for Individual Rights and Expression) noted in a statement:
The FCC has no authority to control what a late night TV host can say, and the First Amendment protects Americans’ right to speculate on current events even if those speculations later turn out to be incorrect. Subjecting broadcasters to regulatory liability when anyone on their network gets something wrong would turn the FCC into an arbiter of truth and cast an intolerable chill over the airwaves.
Carr’s threat was pretty explicit:
I mean, look, we can do this the easy way or the hard way. These companies can find ways to change conduct to take action on Kimmel or there’s going to be additional work for the FCC ahead.
That’s a pretty direct threat to intermediaries to punish Kimmel for obviously First Amendment protected speech.
Just last year, in a 9-0 ruling in NRA v. Vullo, the Supreme Court called out how this kind of thing is a clear violation of the First Amendment.
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. 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….
And, more explicitly:
The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech.
While Carr initially appeared to threaten Disney/ABC’s “licenses,” he knows full well that (other than a small number of owned and operated affiliates) ABC doesn’t actually have most of the licenses. Instead, it’s the local affiliates that do. But Carr directly targeted them with a threat:
There’s action we can take on licensed broadcasters. And, frankly, it’s really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast or Disney and say, listen, we are going to preempt, we’re not going to run Kimmel any more until you straighten this out because we licensed broadcasters are running the possibility of fines or license revocation from the FCC if we continue to run content that ends up being a pattern of news distortion.
This is a not so subtle threat to affiliates to drop Kimmel or face fines or have their licenses pulled.
And, not surprisingly, this threat worked. Hours later, Nexstar, the largest owner of local TV stations in the US which has been sucking up to Trump to try to buy out even more TV stations, announced that it would not run Kimmel’s show on their stations, and shortly after that Disney announced that it was pulling Kimmel’s show “indefinitely.”
Nexstar’s statement was utter nonsense:
“Mr. Kimmel’s comments about the death of Mr. Kirk are offensive and insensitive at a critical time in our national political discourse,” said Andrew Alford, president of Nexstar’s broadcasting division.
Except he didn’t say anything offensive or insensitive. Literally the only thing he did was point out that Trump was fairly insensitive.
So here we have a government official coercing private parties to punish or suppress disfavored speech. This is literally what the (again, unanimous) Supreme Court, just months ago, said was a clear First Amendment violation:
… 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
Yet that is exactly what Brendan Carr just did today. Indeed, this case presents an even clearer First Amendment violation than Vullo in multiple ways. Where Vullo required the Court to analyze implicit threats, Carr’s threat was explicit: “We can do this the easy way or the hard way.” Where Vullo involved regulatory pressure on financial intermediaries over business practices, this directly targets editorial speech—the core of First Amendment protection. And where Vullo’s coercive effect had to be inferred, here we have immediate, documented capitulation by both Nexstar and Disney.
Even if you want to claim that (laughably) Carr’s threats weren’t that explicit, in Vullo the court stated directly that the “threat need not be explicit.” But again, it was pretty explicit.
Also in Vullo, the Court finds that the reaction of the intermediaries can “confirm the communications’ coercive nature.” The fact that Nexstar immediately did what Carr suggested they should do again reinforces what everyone knows is happening here.
And even if you were to argue (ridiculously, laughably) that something Kimmel did actually does violate the law in some way that allows Carr and the FCC to take action, the Supreme Court insisted that the underlying legality of the targeted actions does not matter to the question of whether or not the coercive threats targeted speech:
Moreover, the conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny under the Bantam Books framework. Indeed, the commission in that case targeted the distribution and display of material that, in its view, violated the State’s obscenity laws. Nothing in that case turned on the distributor’s compliance with state law. On the contrary, Bantam Books held that the commission violated the First Amendment by invoking legal sanctions to suppress disfavored publications, some of which may or may not contain protected speech (i.e., nonobscene material). … Here, too, although Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA’s protected expression.
But that’s what Carr clearly did here. He threatened action in order to punish or suppress (incredibly benign) speech.
To be clear, even if one believed Kimmel’s speculation about the shooter’s motivations was somehow problematic, that wouldn’t justify Carr’s response. The Supreme Court has repeatedly held that the remedy for “bad” speech is more speech, not government censorship. The FCC’s “public interest” obligations have never been interpreted to give commissioners the power to police late-night comedy commentary on breaking news.
It’s no secret that Jimmy Kimmel has long been a thorn in Donald Trump’s side. His job is to mock and satirize the news, and he has been making fun of Donald Trump for years.
And yet, will we see the “comedy is legal again” and “free speech absolutists” speak out against Carr’s actions here? I doubt it. Will we see the people who insisted in the past that they can mock and joke about their political opponents without punishment speak up here? Seems unlikely.
We warned that Brendan Carr was eagerly looking to become America’s top censor, and he has succeeded in that. But never let it be said that he is a defender of free speech. He is the exact opposite. He has violated his oath to defend the Constitution and he has infringed upon the First Amendment rights of Americans.
Disney’s decision to cave here is stupid, but predictable. Carr leveraged these bogus threats to get Nexstar to damage Disney, and so Disney caved. It likely decided it doesn’t need another one of these stupid culture war battles that the MAGA crowd has thrust its way over and over again over the past decade.
But this capitulation sets a dangerous precedent. If government officials can successfully threaten broadcast licenses over protected commentary, every late-night host, news anchor, and talk radio personality becomes subject to regulatory retaliation for speech that displeases those in power. Today it’s Kimmel’s mild commentary about political spin; tomorrow it could be any criticism of government officials.
The speed with which Disney folded—within hours of the threat—shows how effectively this censorship-by-proxy operates. No formal proceedings, no due process, no appeals. Just a government official making threats and corporations immediately complying to avoid regulatory harassment. This is precisely the “heckler’s veto by government proxy” that the First Amendment was designed to prevent.
As the Supreme Court ruling closed with in the Vullo case, while government officials can express their opinions, there are limits to their ability to coerce:
Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the “ballot box” is an especially poor check on that official’s authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.
There was a time and a place where Brendan Carr agreed with that sentiment, but apparently it’s not when he’s in power and when the speech criticizes his boss.
Filed Under: 1st amendment, benny johnson, brendan carr, donald trump, fcc, free speech, jawboning, jimmy kimmel, licenses, vullo
Companies: abc, disney, nexstar
