Brendan Carr Flagrantly Abused His Powers To Cancel Jimmy Kimmel
"We can do this the easy way or the hard way," the FCC chairman said, threatening to punish broadcasters for airing the comedian's show.
Monday night on his ABC talk show, Jimmy Kimmel said something dumb about Tyler Robinson, the 22-year-old man accused of assassinating conservative activist Charlie Kirk at a college in Utah last week. Two days later, ABC, which is owned by Disney, announced that it was "indefinitely" suspending the comedian's show.
Maybe the Disney executives who made that decision—CEO Robert A. Iger and Dana Walden, who oversees the company's television division—were simply reacting to public outrage at Kimmel's remarks. But the suspension of Jimmy Kimmel Live! was announced several hours after Brendan Carr, the chairman of the Federal Communications Commission (FCC), suggested that TV stations might be fined or lose their licenses for broadcasting the show. That constitutionally dubious threat shows how the FCC can abuse its regulatory powers to suppress speech that offends President Donald Trump and his allies.
"The First Amendment does not protect performers like Jimmy Kimmel from being cancelled by their private sector employers," Fox News political analyst Brit Hume noted. "But I would have liked the outcome a lot better if the chairman of the FCC had not involved himself in it."
That preference is not just a matter of personal taste. If the First Amendment means anything, it means that federal bureaucrats may not punish private companies for giving a forum to politically disfavored speakers.
That principle applies even when those speakers, in pursuit of their own political agendas, say things that are not true, as Kimmel did on Monday night. "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," Kimmel said during his opening monologue. While the second part of that statement seems pretty accurate, the first part erroneously implied that Robinson is a MAGA supporter. While Robinson's family is conservative, his relatives say his views had recently taken a leftward turn, and text messages indicate that he killed Kirk because of his right-wing opinions.
"I had enough of his hatred," Robinson allegedly told his roommate. "Some hate can't be negotiated out."
Although prosecutors did not release Robinson's text messages until Tuesday, Kimmel's narrative had already been undermined by other evidence, including the anti-"fascist" messages that Robinson inscribed on his rifle cartridges, Utah Gov. Spencer Cox's description of the alleged assassin's "leftist ideology," and conversations in which Robinson had said he "didn't like" Kirk or "the viewpoints that he had," as Cox put it on Friday. While Robinson "does come from a conservative family," Cox said on Sunday, "his ideology was very different [from] his family['s]."
Kimmel, in other words, should have known his claim that Robinson was "one of them," meaning Trump supporters, was reckless. In pushing that thesis, he showed the same sort of partisan desperation that he attributed to "the MAGA gang."
At this juncture, however, the question is not whether Kimmel was mistaken. The question is why Carr, an avowed free speech champion, thought Kimmel's misinformed comments might justify an FCC investigation.
In an interview with right-wing podcaster Benny Johnson on Wednesday, Carr warned that there are "actions we can take on licensed broadcasters" that carry Kimmel's show. He said it is "really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast [which owns NBC] 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 licensed broadcaster[s] are running the possibility of fines or license revocations from the FCC if we continue to run content that ends up being a pattern of news distortion.'"
It's not just Disney that "needs to see some change here," Carr emphasized, saying "it's time" for "the individual licensed stations that are taking their content" to "step up and say, 'This garbage,' to the extent that's what comes down the pipe in the future, 'isn't something that we think serves the needs of our local communities.' But this sort of status quo is obviously not acceptable."
Carr's threat was not subtle. "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 FCC ahead."
Nexstar, which owns 32 ABC affiliate stations, apparently got the message. On Wednesday night, the company announced that it would preempt Jimmy Kimmel Live! "for the foreseeable future beginning with tonight's show."
Here is how Andrew Alford, president of Nexstar's broadcasting division, explained that decision: "Mr. Kimmel's comments about the death of Mr. Kirk are offensive and insensitive at a critical time in our national political discourse, and we do not believe they reflect the spectrum of opinions, views, or values of the local communities in which we are located. Continuing to give Mr. Kimmel a broadcast platform in the communities we serve is simply not in the public interest at the current time, and we have made the difficult decision to preempt his show in an effort to let cooler heads prevail as we move toward the resumption of respectful, constructive dialogue."
ABC also fell in line, announcing its decision later the same night. Trump welcomed the move as "Great News for America" in a Truth Social post. "The ratings challenged Jimmy Kimmel Show is CANCELLED," he gloated. "Congratulations to ABC for finally having the courage to do what had to be done. Kimmel has ZERO talent, and worse ratings than even Colbert, if that's possible. That leaves Jimmy [Fallon] and Seth [Meyers], two total losers, on Fake News NBC. Their ratings are also horrible. Do it NBC!!!"
Courage is not the quality that comes to mind when you consider Disney's capitulation to government pressure. "The government pressured ABC—and ABC caved," said Ari Cohn, lead counsel on tech policy at the Foundation for Individual Rights and Expression. "The timing of ABC's decision, on the heels of the FCC chairman's pledge to the network to 'do this the easy way or the hard way,' tells the whole story. Another media outlet withered under government pressure, ensuring that the administration will continue to extort and exact retribution on broadcasters and publishers who criticize it. We cannot be a country where late night talk show hosts serve at the pleasure of the president. But until institutions grow a backbone and learn to resist government pressure, that is the country we are."
As Cohn suggests, Trump clearly is not satisfied with this win, since he immediately proceeded to demand that NBC cancel the shows of two other comedians who are critical of him. Such flagrant presidential meddling in TV programming decisions is par for the course with Trump, who has no compunction about using the power of his office to pursue his personal vendettas. But just two days ago, Carr was throwing cold water on the idea that Kirk's murder could justify new speech restrictions. "Our First Amendment, our free speech tradition, protects almost all speech," he noted at a conference on Tuesday.
The very next day, Carr warned that the FCC might revoke the broadcast licenses of stations that dared to air Kimmel's show, which he deemed "obviously not acceptable." His justification—that offering content offensive to Trump's supporters could amount to "broadcast news distortion"—is absurd on its face.
As the FCC explains, proving such a claim requires "evidence showing that [a] broadcast news report was deliberately intended to mislead viewers or listeners." News distortion "must involve a significant event and not merely a minor or incidental aspect of the news report," the agency notes. "In weighing the constitutionality of the policy, courts have recognized that the policy 'makes a crucial distinction between deliberate distortion and mere inaccuracy or difference of opinion.' As a result, broadcasters are only subject to enforcement if it can be proven that they have deliberately distorted a factual news report. Expressions of opinion or errors stemming from mistakes are not actionable."
Kimmel's comments about Robinson can plausibly be described as "mere inaccuracy or difference of opinion," meaning they are "not actionable" under FCC policy. But even leaving aside the question of whether Kimmel "intended to mislead viewers," his monologue was by no stretch of the imagination a "broadcast news report."
Carr also alluded to broadcasters' vague obligation to serve "the public interest," which Nexstar explicitly mentioned in explaining its decision to preempt Kimmel's show. But the FCC's enforcement of that obligation likewise is constrained by the First Amendment.
"The FCC has limited legal authority to act on complaints relating to the content of television or radio programming," the agency notes. In addition to the First Amendment, the law that authorizes FCC regulation of broadcasters explicitly says the agency does not have "the power of censorship over the [broadcast] communications or signals transmitted by any [broadcast] station." It adds that "no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of [over-the-air] broadcast communication."
In light of those limitations, "the FCC has long held that 'the public interest is best served by permitting free expression of views,'" the agency explains. "Rather than suppress speech, communications law and policy seeks to encourage responsive 'counter-speech' from others. Following this principle ensures that the most diverse and opposing opinions will be expressed, even though some views or expressions may be highly offensive."
Carr's threat to punish broadcasters for airing Kimmel's show cannot possibly be reconciled with these principles. It is the opposite of "permitting free expression of views," even when they "may be highly offensive."
Carr's bullying is untenable even under current law and policy. But he has the ability to pressure broadcasters only because the Supreme Court has drawn an arbitrary distinction between speech aired on TV or radio stations and speech in every other medium.
"Cable news networks, newspapers or newsletters (whether online or print), social media platforms, online-only streaming outlets, or any other non-broadcast news platform are outside of the FCC's jurisdiction with respect to news distortion," the agency notes. More generally, the FCC explains, "over-the-air broadcasts by local TV and radio stations are subject to certain speech restraints, but speech transmitted by cable or satellite TV systems generally is not," and "the FCC does not regulate online content."
These distinctions are puzzling. The original rationale for government regulation of broadcasting—that it was necessary in light of the radio spectrum's "scarcity"—never made much sense, especially as a justification for restricting content. It makes even less sense in the current media environment, where the same content can be published or transmitted in a wide variety of ways but is subject to regulation only if it travels through the air under a license issued by the FCC.
Government licensing of newspapers, websites, or streaming services would be a constitutional nonstarter, inviting all sorts of interference with the liberties guaranteed by the First Amendment. Government licensing of broadcasters poses similar perils, as Carr seems keen to demonstrate.
