The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Jimmy Kimmel, the NRA, and the First Amendment
ABC is free to suspend Jimmy Kimmel's show for whatever reason it wants to (at least unless there's some contractual limit on that, which I doubt). The First Amendment doesn't constrain private companies such as ABC; indeed, it protects networks' right to choose what programs to air.
But if the government coerced ABC into suspending the show, through threats of retaliation, that would have likely violated the First Amendment. And we know that because of last year's Supreme Court decision in NRA v. Vullo.
In NRA v. Vullo, financial companies cut off or limited ties to the NRA, allegedly because they were pressured to do so by the New York state Department of Financial Services. If the companies had acted on their own, that wouldn't have violated the First Amendment, since the First Amendment doesn't generally apply to actions by private businesses. But the Court held that, if New York had coerced them, that coercion by the government would be unconstitutional. (The case came before the Court early, before there was any factfinding, so the Court left it to lower courts to resolve those factual questions.) To quote the Court:
Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA's pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim.
The same legal framework would apply here. Carr seemingly threatened ABC on the Benny Johnson podcast:
The FCC Chairman is threatening immediate action against Jimmy Kimmel, ABC, and Disney for deliberately misleading the public by claiming Charlie Kirk's assassin was a MAGA Conservative.
Chairman Brendan Carr calls Kimmel's malicious lies are "truly sick" and says they should result in Kimmel's immediate suspension and may lead to ABC losing its broadcast license.
Chairman Carr confirms the agency has a "strong case" to hold Kimmel, ABC, and Disney accountable for spreading dangerous, politically motivated misinformation.
"This is a very, very serious issue right now for Disney. We can do this the easy way or the hard way. These companies can find ways to take action on Kimmel or there is going to be additional work for the FCC ahead."
"They have a license granted by us at the FCC, and that comes with it an obligation to operate in the public interest."
"There are calls for Kimmel to be fired. I think you could certainly see a path forward for suspension over this."
"The FCC could make a strong argument that this is sort of an intentional effort to mislead the American people about a very core fundamental fact, a very important matter."
"Disney needs to see some change here, but the individual licensed stations that are taking their content, it's time for them to step up and say this, you know, garbage to the extent that that's what comes down the pipe in the future isn't something that we think serves the needs of our local communities. But, but this sort of status quo is obviously not, not acceptable where we are."
If ABC acted because of these threats, I think that would show that threats likely violated the First Amendment under NRA v. Vullo. Likewise if ABC acted because of behind-the-scenes threats by the FCC, if any such were made, related to the FCC's upcoming decision whether to approve a merger between Nexstar (which owns many ABC affiliates) and another broadcasting company, Tegna.
To be sure, the FCC has generally had more authority over over-the-air broadcasters than the government has over newspapers, Internet speakers, and others; and the Supreme Court has, rightly or wrongly, upheld such authority, in cases such as Red Lion Broadcasting v. FCC (1969), which upheld the then-existing Fairness Doctrine against a First Amendment challenge. But even if the FCC has some power to impose fines or other such punishment for the apparent inaccuracy in Kimmel's remark ("We had 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 with everything they can to score political points from it"), I don't think that can justify the FCC trying to pressure ABC into suspending Kimmel.
Indeed, here a 1963 case on which NRA v. Vullo relied, Bantam Books, Inc. v. Sullivan, is helpful. In Bantam Books, bookstores took certain books of the shelf, which the bookstores were themselves perfectly entitled to. But they did so because they were pressured by a Rhode Island commission, which threatened to get the police and prosecutors to go after the stores under obscenity laws if the books were not removed. That, the Court held, was unconstitutional coercion, which violated the First Amendment. If some of the books were obscene, the stores could indeed be prosecuted for selling them. But the government couldn't just suppress a wide range of books by threatening such prosecution. As NRA v. Vullo noted,
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. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy.
Likewise, the FCC chairman's statements were calling for suspending the Kimmel program generally, which would of course include many statements beyond the one that supposedly violated the rules against broadcast news distortion (or any other relevant rules). "Here, too, although [the FCC chairman] can pursue violations of [federal broadcasting rules, he] cannot do so in order to punish or suppress [Kimmel's] protected expression."
Now sometimes proving that material was removed because of coercion by the government may be difficult, and proving that the government was engaged in coercion (i.e., "threat[ening] adverse government action in order to punish or suppress the plaintiff's speech") rather than persuasion may be difficult as well. That was seen in Murthy v. Missouri, argued the same day as NRA v. Vullo.
In Murthy, various plaintiffs argued (among other things) that their speech was restricted by social media platforms because the platforms were coerced to do so by the government. But the Court concluded that the plaintiffs hadn't adequately shown that the government's actions caused the removal, e.g.:
[T]he platforms began to suppress the plaintiffs' COVID-19 content before the defendants' challenged communications started, which complicates the plaintiffs' effort to demonstrate that each platform acted due to "government-coerced enforcement" of its policies, rather than in its own judgment as an "'independent acto[r].'" …
With one or two potentially viable links, Hines makes the best showing of all the plaintiffs. Still, Facebook was targeting her pages before almost all of its communications with the White House and the CDC, which weakens the inference that her subsequent restrictions are likely traceable to "government-coerced enforcement" of Facebook's policies, rather than to Facebook's independent judgment….
The plaintiffs, without any concrete link between their injuries and the defendants' conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court's standing doctrine prevents us from "exercis[ing such] general legal oversight" of the other branches of Government.
This is consistent, of course, with the Court's allowing the plaintiffs' claims in NRA v. Vullo to go forward: The NRA argued that there was indeed concrete evidence that the financial companies were otherwise happy to keep doing business with the NRA, but cut or reduced their ties precisely because of the New York officials' coercion. Likewise, if Kimmel sued over the FCC's actions (and there are many business reasons why he likely wouldn't), he would need to show that ABC acted because of government officials' coercion (whether coercion exerted on them directly or on their business associations, such as owners of ABC affiliate stations).
But if the suspension stemmed from government coercion, that would indeed be a First Amendment violation (whether or not the matter ultimately ever comes to court). And if government officials are trying, whether successfully or not, to thus coerce private entities—whether financial companies, bookstores, or broadcasters—then that is an attempt to violate the First Amendment, which itself is improper.
Note: I was Counsel of Record on the NRA's cert. petition that asked the Supreme Court to hear NRA v. Vullo, but of course I'm writing here on my own behalf, and not representing the NRA (or anyone else).
