The Volokh Conspiracy
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Would Jimmy Kimmel Have Standing To Bring a Jawboning Claim Under Murthy?
Whatever standing rule applies to the red team should apply to the blue team.
Eugene has written a few posts about how the Jimmy Kimmel incident would be analyzed under NRA v. Vullo. I think another relevant precedent to consider is Murthy v. Missouri. In this case, Justice Barrett found that no one had standing to challenge the Biden Administration's "jawboning" of social media companies, despite an overwhelming evidentiary record.
First, here is the test Barrett put forward:
Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. On this record, that is a tall order.
I'm not sure that Jimmy Kimmel could meet this test were he to sue FCC Commissioner Brenden Carr. First, unlike with Vullo, there was no actual state action taken against Kimmel. At most, Carr made some statements on a podcast about what might happen in the future. Seems speculative. By contrast, in Vullo, the New York government had taken discrete acts against the NRA
Second, consider the traceability prong. It would be difficult to show that ABC's suspension of Kimmel could be traced to Carr's statements. As I understand the facts, several prominent affiliates made the decision to preempt coverage of Kimmel's show due to his statements about Charlie Kirk. ABC, a business entity, may have decided that airing Kimmel's show would be bad for business, and not worth the headache. Relatedly, Comedy Central took a show that mocked Kirk out of the broadcast rotation. Indeed, in light of the cancellation of Colbert's show, ABC may use this suspension as an excuse to cut the costs of a non-profitable late-night show. Again, more business decisions.
Justice Alito's Murthy dissent criticized Justice Barrett's demanding standard for traceability:
What the Court seems to want are a series of ironclad links—from a particular coercive communication to a particular change in Facebook's rules or practice and then to a particular adverse action against Hines. No such chain was required in the Department of Commerce case, and neither should one be demanded here.
Barrett responded:
By acknowledging the real possibility that Facebook acted independently in suppressing Hines' content, we are not applying a "new and heightened standard," as the dissent claims. . . . Nor is our analysis inconsistent with Department of Commerce v. New York, 588 U. S. 752 (2019).
Here, there is a "real possibility" that ABC "acted independently" in taking Kimmel's show off the air. That would seem to be a valid business interest, in ways that suppressing COVID posts was not. I do not see any "ironclad links."
Third, let's turn to redressability. How can a lawsuit against Brendan Carr put Jimmy Kimmel back on the air? Barrett writes:
Far from holding plaintiffs to a "certainty" standard, ibid., we simply conclude that an injunction against the Government defendants is unlikely to stop the platforms from suppressing the plaintiffs' speech. . . . Facebook might continue to remove Hines' posts under a policy that it adopted at the White House's behest (thus satisfying traceability). But if the White House officials have already abandoned their pressure campaign, enjoining them is unlikely to prompt Facebook to stop enforcing the policy (thus failing redressability).
An injunction would not help Kimmel, therefore, there is no obvious redressability.
I don't see how Kimmel would clear the standing bar in Murthy.
To be clear, I vigorously disagree with Murthy. Whatever good that Justice Barrett did in CASA does not come close to making up for her analysis in Murthy. But whatever standing rule applies to the red team should apply to the blue team.
