Jimmy Kimmel is back, but free speech concerns continue
A government threat to silence a comedian the president doesn’t like is “anti-American,” Jimmy Kimmel told his late-night audience Tuesday, when he was back on the air after ABC’s temporary suspension of his show, Jimmy Kimmel Live!
Many lawyers agree and have concerns about President Donald Trump’s administration’s pursuit of the late-night host.
After the killing of conservative political activist Charlie Kirk on Sept. 10, Kimmel said on his show that Trump supporters were trying to “score political points” by portraying the man accused of killing Kirk as a left-wing radical rather than “one of them.” Kimmel also commented on Trump’s response to Kirk’s death.
Kimmel’s suspension started Sept. 17. Before that, Federal Communications Commission Chairman Brendan Carr said that ABC and owner Disney were facing a “very, very serious issue.”
“They have a license granted by us at the FCC, and that comes with it an obligation to operate in the public interest,” Carr told podcaster Benny Johnson.
Carr said that companies like ABC can find ways to respond, “or there is going to be additional work for the FCC ahead.”
According to First Amendment lawyers interviewed by the ABA Journal, Carr’s comments appear to conflict with U.S. Supreme Court precedent, including its 2024 ruling in National Rifle Association of America v. Vullo. Carr, referring to Kimmel, said on the podcast that “when you see stuff like this—I mean, we can do this the easy way or the hard way.”
Len Niehoff, a professor at the University of Michigan Law School who teaches First Amendment and media law, says “government censorship based on the viewpoint of the speaker is as bad as First Amendment violations get.”
He adds: “Based on what we know to date, the First Amendment violation seems clear if not even brazen.”
There is a string of Supreme Court rulings affirming that government officials who try to silence disfavored speech by private citizens run afoul of the First Amendment, legal experts say.
Most recently, the Supreme Court ruled unanimously for the NRA in NRA v. Vullo, saying that “a government official cannot coerce a private party to punish or suppress disfavored speech.” The case involved a lawsuit brought by the NRA alleging that the then-superintendent of the New York State Department of Financial Services, Maria Vullo, coerced insurance companies and banks into not doing business with the NRA in order to suppress its advocacy for gun rights.
The opinion’s reasoning is based on decades of precedent, says Harold Krent, a professor at the Illinois Institute of Technology Chicago-Kent College of Law.
According to him, the “distinction between persuasion and coercion can be muddy.” However, the key question is “whether the FCC chair’s comments reflected an effort to persuade networks to block Kimmel’s show or whether they constituted coercion.”
For instance, he adds, if Carr threatened that the FCC would block future acquisition requests or predicate renewal of a license unless the network cut ties with Kimmel, “the answer of coercion would be clear.”
David D. Cole, a professor at the Georgetown University Law Center, is also the former national legal director for the American Civil Liberties Union, which represented the NRA in its case against Vullo. According to Cole, Carr’s comments are potentially in conflict with the ruling in NRA v. Vullo. He also says that “the government should have no say in reviewing television programs for political correctness.”
A broader concern, Cole says, is that the Trump administration is trying to control the media by silencing disfavored public opinions or particular reporting.
Niehoff adds that it is “perhaps particularly sad that the targeted speech comes from a comedian,” pointing out how, in the 1988 ruling in Hustler Magazine Inc. v. Falwell, the Supreme Court “celebrated the role of humor and satire in American life.”
In that case, Chief Justice William H. Rehnquist wrote that, from the viewpoint of history, “it is clear that our political discourse would have been considerably poorer without them,” referring to satirical cartoons.
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