Talk-show host Jimmy Kimmel’s suspension by ABC following pushback from affiliate stations about comments he made Sept. 15 about the alleged killer of Charlie Kirk has been major news.
The timing of the decisions by affiliate groups Nexstar and Sinclair to preempt Jimmy Kimmel Live! from their programming schedule was noteworthy, in that both came just hours after Federal Communications Commission (FCC) Chair Brendan Carr appeared on a conservative podcast encouraging the affiliates to “step up” in the wake of Kimmel’s comments. Carr noted that the broadcasters have a “license granted by us at the FCC that comes with it an obligation to operate in the public interest,” adding that:
We can do this the easy way or the hard way. These companies can find ways to change conduct to take actions, frankly on Kimmel, or there’s going to be additional work for the FCC ahead.
The implication certainly would appear to be that the commission might exercise its authority to issue fines or revoke licenses for a pattern of news distortion if no action was taken with respect to Kimmel’s comments.
While Carr’s apparent threats may appear on their face to be a First Amendment violation, current caselaw suggests that it would be difficult for Jimmy Kimmel to be able to successfully challenge this conduct. It also raises the question of why broadcasters are treated differently under the law to begin with. A better path forward would be to recognize the drastic changes in the modern media marketplace, and to give broadcasters full First Amendment protections.
Standing and Murthy: Who Can Sue Whom?
First, there is the question of who would be able to bring a lawsuit against the FCC. Standing doctrine is grounded in courts’ jurisdiction under the Constitution being limited to “cases and controversies.” To establish standing, a plaintiff must be able to prove (and continue to prove at each successive level of litigation) that there is:
- A concrete and particularized injury that is actual or imminent;
- That it is fairly traceable to the challenged action; and
- That it is redressable by a favorable ruling.
In Murthy v. Missouri, the Supreme Court limited the ability of individuals to establish standing when they were alleging censorship due to government coercion of an intermediary. I noted at the time how this could be problematic, and allow a lot of backdoor censorship to continue unabated:
Murthy… does restrict significantly the pool of possible plaintiffs in backdoor censorship cases. Those who have their speech suppressed online will likely not know if it is the independent work of social-media companies or due to government efforts unless some rare event like the “Twitter Files” happens, and the social-media companies let them know. So a lot of backdoor censorship could continue without any court review… [S]tanding complications may doom these types of cases going forward, unless social-media companies (or other intermediaries who affect third-party speech) are the ones to bring the court challenge.
There are, however, some key differences between Murthy and what occurred here that might make it easier for Kimmel to establish standing than the plaintiffs in that case.
First, Kimmel could assert monetary damages against the FCC, making it much easier to establish standing. The Court in Murthy emphasized that “[i]f the plaintiffs were seeking compensatory relief, the traceability of their past injuries would be the whole ball game. But because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value.”
Second, both the timing of the announcements by Nexstar and Sinclair, and the FCC’s direct authority over both companies’ broadcast licenses, make it easier to prove traceability. The affiliates’ actions occurred not immediately following Kimmel’s comments on the alleged shooter, but two days later—mere hours after Carr’s own comments.
Moreover, Nexstar is currently trying to buy Tegna, a $6.3 billion transaction that is subject to FCC review and approval. Importantly, Sinclair has also expressed interest in buying Tegna. In other words, both entities have major interests before the FCC that would compel them to remain on the commission’s good side, in addition to licenses that will need renewal, and the possibility of fines.
It is no surprise, then, that these are the affiliate groups that were first to announce they would preempt the show, and that they did so promptly after Carr expressly offered his encouragement to “step up.” This is much more direct than the causation theories in Murthy, which relied on more general threats of government action that were remote—such as Section 230 repeal, which would require new legislation passed by Congress and signed by the president.
Moreover, there are reports that ABC executives themselves felt the need to suspend Kimmel because of looming threats from the Trump administration, rather than because they thought Kimmel’s commentary crossed the line:
In the hours leading up to the decision to pull Kimmel, two sources familiar with the matter say, senior executives at ABC, its owner Disney, and affiliates convened emergency meetings to figure out how to minimize the damage. Multiple execs felt that Kimmel had not actually said anything over the line, the two sources say, but the threat of Trump administration retaliation loomed.
On the other hand, the FCC could argue that the local broadcasters were merely asserting their own interests to best serve their customers by pulling Kimmel’s show. The Court rejected causation in Murthy, in part, because “the platforms had independent incentives to moderate content and often exercised their own judgment,” finding the plaintiffs did not sufficiently show that government action caused any particular moderation decision. Here, the argument would be that the show was having ratings problems that were only likely to get worse if much of the country was offended by what Kimmel insinuated in his commentary around the Kirk murder.
A court would have to sort out whether there is enough evidence to establish traceability in light of the timing and nexus of the FCC’s authority over the broadcasters’ licenses.
Finally, Kimmel’s injury is more redressable than the social-media plaintiffs. Here, he could assert damages from losing his show. He likely wouldn’t be seeking an injunction, which requires evidence of the likelihood of future bad actions by the government.
Vullo, Bantam Books, and Coercion: Are FCC Threats Illegal?
Assuming Kimmel could establish standing, the Supreme Court’s recent opinion in NRA v. Vullo, reasserting the Bantam Books standard for coercion cases, is the controlling precedent.
On its face, Vullo isn’t very analogous to what happened here. There, as R.J. Lehmann and I detailed after the opinion was released, the issue was over consent decrees strong-armed by the New York State Department of Financial Services (DFS) and its then-Superintendent Maria Vullo with an insurer and insurance broker that were designed to harm the advocacy efforts of the National Rifle Association (NRA) by having them promise “not to participate in the Carry Guard Program, any similar programs, or any other NRA-endorsed programs with regard to New York State.”
The government action at-issue here is encouragement, with an implicit threat of future government action, made by the FCC chair—not already completed action in the form of consent decrees.
The better analogy is actually Bantam Books itself. There, the Rhode Island Commission to Encourage Morality in Youth was empowered to educate, investigate, and recommend prosecution of publications that were obscene to youth. While the commission had no independent ability to regulate or suppress obscenity, it did have the ability to threaten legal sanctions and other means of “coercion, persuasion, and intimidation” to suppress publications deemed “objectionable.” The commission did this by notifying “distributors on official Commission stationery that certain designated books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable.”
Here, it is worth repeating that Carr’s words were pretty straightforward:
I think that it’s really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast and Disney and say, “Listen, we are going to preempt, we are not going to run Kimmel anymore, until you straighten this out because we, we licensed broadcaster, 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”… We can do this the easy way or the hard way… These companies can find ways to change conduct and take action, frankly, on Kimmel or there’s going to be additional work for the FCC ahead.
The question is whether this implicit threat is close enough to what the Rhode Island commission did to be illegal coercion leading to censorship.
The problem for Jimmy Kimmel here is that the FCC has very broad authority over broadcasters because they can review the use (and transfer) of licenses under the “public interest” standard. Caselaw suggests the FCC can revoke licenses, deny their transfer, and issue fines for things like not giving political candidates the right to respond, news distortion, and broadcasting obscenity. As will be discussed below, the Supreme Court has allowed the FCC to be the cop on the beat, so to speak, in policing whether licensed broadcasters are acting “in the public interest” with little restriction on how the FCC defines those terms.
This makes the situation very different than the Rhode Island commission, which could, at best, merely recommend prosecution for obscenity. Here, the FCC is more like the cop who is giving a warning to stop breaking the law. The import of this difference would be the source of debate in a case brought by Kimmel against the FCC.
As the Court stated in Bantam Books:
We do not hold that law enforcement officers must renounce all informal contacts with persons suspected of violating valid laws prohibiting obscenity. Where such consultation is genuinely undertaken with the purpose of aiding the distributor to comply with such laws and avoid prosecution under them, it need not retard the full enjoyment of First Amendment freedoms. But that is not this case. The appellees are not law enforcement officers; they do not pretend that they are qualified to give or that they attempt to give distributors only fair legal advice. Their conduct as disclosed by this record shows plainly that they went far beyond advising the distributors of their legal rights and liabilities. Their operation was in fact a scheme of state censorship effectuated by extralegal sanctions; they acted as an agency not to advise but to suppress.
In this case, Kimmel could argue that Carr’s statements “went far beyond advising… [on] legal rights and liability” to a “scheme of state censorship.” For its part, the FCC could respond that Carr was merely “aiding” local broadcasters to comply with the FCC’s regulations, which the FCC has authority to enforce. A court would need to determine whether the comments crossed the line into coercion aimed at censorship, or whether they were merely advising broadcasters of their responsibilities. It isn’t clear which way this would go.
FCC Power over Broadcasters and the Public Interest Standard
The reason the FCC has this unusual authority over broadcasters, which would clearly be a First Amendment violation if applied to any other medium, is that the Supreme Court has found the very nature of using the public airwaves makes it different, and the FCC must therefore have authority over how to regulate licenses to prevent interference.
In cases like Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation, the Court emphasized that the need for the government to allocate frequencies, which are a scarce resource. This, the Court has found, gives the government the right to set certain license conditions that could never be applied to other mediums of expression. As the Court put it in Pacifica:
[A]lthough other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve “the public interest, convenience, and necessity.”
This “public interest” standard is very broad and includes review of the content of speech. In cases like NBC v. United States, the Court made clear that:
[T]he Commission’s powers are not limited to the engineering and technical aspects of regulation of radio communication… merely to supervision of the traffic. It puts upon the Commission the burden of determining the composition of that traffic.
In other words, they can and must consider the content of broadcast licensees to determine whether it is in the public interest.
Here, this means the FCC actually does have a great deal of authority over local broadcasters, like those owned by Nexstar and Sinclair (in addition to the local affiliates owned directly by ABC). As a result, television and radio broadcasters are in a much more limited position than nearly any other medium of expression in asserting First Amendment rights to choose content as they see fit to best serve their customers. They must also consider what the FCC may think is in the public interest.
Thus, when the FCC chair says that allowing Jimmy Kimmel to remain on the airwaves could be a problem, ABC and its affiliates must take heed.
A Better Path Forward: Giving Broadcasters Full First Amendment Protection
It is questionable whether the reasoning for giving broadcasters more limited First Amendment rights ever made sense. The fact that there can be interference if frequencies aren’t allocated doesn’t mean a government agency needs to be in charge of allocating them according to whatever they define as “the public interest” at that given time. Whether through recognizing homesteading or auctioning licenses, the government could have found ways to allocate the frequencies such that they did not interfere with one another without imposing content-based restrictions on speech.
But insofar as FCC authority over broadcast ever made sense, it certainly makes very little today. Broadcasters no longer have the market power they once did, when television consumers only had ABC, NBC, CBS, and PBS—later to be joined by Fox, UPN, the WB, and the CW. Cable, satellite, and all the offerings of internet-video services are stiff competition for network television. Even content from network broadcasters is largely accessed today through cable, satellite, or the internet. Very few customers rely on over-the-air antennas for television at all anymore.
The world is very different than it was in the 1960s and 1970s, when the Supreme Court considered the First Amendment rights of broadcasters in Red Lion and Pacifica. There is no reason to continue to treat them differently for First Amendment purposes when they are not only in competition, but largely losing that competition to other video-content mediums. Treating ABC differently than CNN because it could theoretically be accessed by bunny ears makes very little sense.
Congress and the courts (if not the FCC itself) should take a hard look at FCC regulations on broadcasters and determine whether they are consistent with free-speech values. The repeal of rules that put the FCC in charge of reviewing content would be a good place to start. Full First Amendment protections should apply to broadcasters in a modern world.
Conclusion
For those confused as to why comments made by an FCC chairman on a podcast could lead to the firing of a talk-show host, the reason is the law gives the FCC broad authority over broadcasters. It is time for the law to catch up with reality. Broadcast television is in a fight to remain relevant, whether we are talking about late-night talk shows or other content. They should be free from FCC oversight of content (and thus threats) and be allowed to compete in the marketplace as they see fit.
Perhaps Jimmy Kimmel would have been fired anyway, even without Chairman Carr’s comments, due to marketplace pressure alone. But because of the way the law currently works, the threat of jawboning remains pervasive.
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