A free speech crisis is roiling many of our most prominent institutions. This conclusion, echoed by a growing number of legal scholars and commentators, received further support yesterday when two major media corporations took “Jimmy Kimmel Live!” off the air. Nexstar, the owner of over 30 ABC affiliates, defended its decision on the grounds that Kimmel had made “offensive and insensitive” remarks “at a critical time in our national political discourse.” ABC quickly followed up by “indefinitely” pulling the plug itself.
Kimmel’s sin? A disputed claim made Monday that the “MAGA gang” was “desperately trying to characterize” Tyler Robinson, the 22-year-old man charged with the murder of Charlie Kirk, “as anything other than one of them.”
This backdrop provides reason to believe that Kimmel’s suspension was not merely the result of uncoerced decisions by private entities.
At first glance it appears that Kimmel lacks recourse to vindicate his speech rights in court. With rare exceptions, the First Amendment protects against adverse action only by the government. Referred to as the “state action doctrine,” this rule generally means that private, non-governmental entities like ABC and Nexstar cannot violate another’s First Amendment rights. Yet context suggests there might be more constitutional significance to Kimmel’s suspension than meets the eye.
Last year, the U.S. Supreme Court decided National Rifle Association v. Vullo. There the court considered a lawsuit brought by the NRA, which alleged that the superintendent of New York’s Department of Financial Services had threatened several of the NRA’s business partners with adverse regulatory action, pressuring them to cut ties with the NRA to indirectly (and unconstitutionally) punish it for its pro-gun advocacy. The court agreed. In a 9-0 decision, it ruled that “a government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”
Reaffirming 60-year-old precedent, Vullo emphasized that the First Amendment prohibits not just direct governmental interference with speech but indirect interference, as well. It made clear, as Professor Genevieve Lakier has explained, that public officials “may never intentionally attempt to use their informal powers” over private actors “to evade constitutional constraint.” And it established that the government can unlawfully coerce third parties into suppressing speech not only by threatening them with sticks (for instance, the revocation of a broadcast license) but also by enticing them with carrots (for instance, the approval of a merger).
Hours before the suspension of “Jimmy Kimmel Live!” Brendan Carr, chairman of the Federal Communications Commission, publicly suggested that Kimmel had contributed to a “concerted effort to try to lie to the American people.” He underscored the FCC’s control over the broadcast licenses issued to local stations using public airwaves. And he made it plain that regulated entities like ABC could “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.”
For its part, Nexstar needs FCC approval to complete a pending merger with rival Tegna that would entrust it with oversight of 265 television stations across 44 states. In the deal’s Aug. 19 announcement, Nexstar CEO Perry Sook praised “initiatives being pursued by the Trump administration” that gave “local broadcasters the opportunity to expand reach,” while Tegna Chairman Howard Elias called for the loosening of applicable broadcast regulations.
This backdrop provides reason to believe that Kimmel’s suspension was not merely the result of uncoerced decisions by private entities.
The government’s recent push against Kimmel is just the latest installment in the Trump administration’s larger campaign to bend civil society to its will.
To be sure, predicting legal outcomes is more art than science. No one knows whether Kimmel will sue. If he does, he would be likely to face complicated procedural hurdles. Still, through Chairman Carr’s not-so-veiled threats, the Trump administration has opened itself up to a plausible First Amendment challenge under the court’s reasoning in Vullo. A First Amendment victory for Kimmel would thus limit the government’s ability to punish speech by pressuring private intermediaries, a positive outcome for freedom of speech.
The government’s recent push against Kimmel, however, is just the latest installment in the Trump administration’s larger campaign to bend civil society to its will. Taken together, its attacks on the press, universities, scientific bureaucracies, museums and law firms threaten the most widespread chilling of free expression since the McCarthy era. Indeed, this sustained assault on our institutions is consistent with warnings from political scientists that the United States has backslid from democracy to competitive authoritarianism, a political regime in which “parties compete in elections but the incumbent’s abuse of power tilts the playing field against the opposition.”
Vullo proves that the First Amendment can slow this crisis down. In fact, the recent district court decision invalidating the administration’s withholding of federal grant funding from Harvard cites Vullo extensively. Perhaps Kimmel, too, can call on the First Amendment for protection.
Yet it is not enough that Jimmy Kimmel might have important First Amendment law on his side. Our free speech crisis runs much deeper than ABC, Nexstar and the FCC.
Pushing back on the administration’s systematic assault on our institutions — combating the crisis head on — requires civic action beyond the courthouse. For the freedom of speech to ring true as a legal value worth protecting, the power and possibility of communication must be reaffirmed by all of us, individuals and institutions alike, fighting not just for a desirable body of First Amendment doctrine but also for the substantive principles of truth and democracy that doctrine is supposed to advance.
