The understandable uproar about the suspension of Jimmy Kimmel for the comments he made in the air on Monday regarding the murder of the right -wing activist Charlie Kirk, and the unfocused response of President Trump, has been erroneously focused on whether ABC infringed the rights of the first amendment of Kimmel. ABC and its Disney parent company have rights of 1st amendment to decide whether to transmit to Kimmel and can be criticized for the fall in the pressure of the Federal Communications Commission, but had the legal freedom to suspend the host.
However, it is clear that the president of the FCC, Brendan Carr, violated the first amendment when he threatened ABC with consequences if he did not take measures against Kimmel.
“Look, we can do this in the easy or difficult way,” Carr said during an appearance in Benny Johnson's podcast on Wednesday in response to Kimmel's monologue. “These companies can find ways to change the behavior, take measures, frankly, in Kimmel, or, you know, there will be an additional job for the FCC ahead.” Carr added that this “is a very, very serious problem for Disney at this time.” The law clearly establishes that government officials cross the line when they violate freedom of expression and threaten the sanctions for expression, as Car did not doubt, and ABC capitulated.
In 1963, in Bantam Books Inc. vs. Sullivan, the court said that it was unconstitutional for the Rhode Island commission to encourage morality in young people to identify books considered “objectable” for children and then write distributors, urging them to stop selling the books. In that case, the police often followed the letters with visits to the houses of the recipients to confirm what actions had been taken in response. The Supreme Court considered that such pressure was an unconstitutional previous restriction of speech, although books were not prohibited and prosecutions were not carried out.
A year ago, the Supreme Court unanimously reaffirmed this in National Rifle Assn. from America vs. Vullo, allowing a demand for the NRA against Maria Vullo, who had been the Superintendent of the Department of Financial Services of New York. After Parkland's school shooting, Florida, who killed 17 students and staff members at Marjory Stoneman Douglas High in 2018, vullo allegedly encouraged insurance companies and bank officials, whom he regulated, not to do business with the NRA. Vullo allegedly agreed not to process companies for their violations of the law if they ended their financial relations with the weapon rights group.
The Supreme Court in a 9-0 decision determined that the NRA had a valid statement that vullo threats violated the first amendment. Justice Sonia Sotomayor wrote for a unanimous court, declaring that “government officials cannot try to force private parties to punish or suppress the opinions that the Government disadvantages.”
In the same way, the FCC is not allowed, under the first amendment or by statute, regulate the content or discourse of a broadcaster depending on its point of view. However, Carr explicitly declared this as his goal. “The public interest means that a narrow partisan circus cannot execute and still fulfill its obligations of public interest,” Carr told Johnson. “That means you can't participate in a news distortion pattern.” Of course, what is “partisan” and “news distortion” are determined by Carr, which is very conservative. The objective of the first amendment is that we never give government officials to use their views to silence others.
It is no accident that Kimmel was a frequent critic of Trump, as well as the presenter of the CBS at the last minute of the night, Stephen Colbert, who announced in July that his program will be canceled next year despite being number 1 in his schedule. On board Air Force One on Thursday, Trump complained about the night hosts and television stations that only gave him a bad press. “And they are receiving a license,” Trump said, “… maybe their license should be removed.” Doing it obviously would violate the first amendment, but even the threat is chilling and unconstitutional. The effort to silence critics is a page directly from the playing book of each authoritarian in history. But unfortunately, it is working, even in this country with its deep commitment to freedom of expression.
Carr's effort to eliminate Kimmel from the air should be understood as part of Trump's greater effort and his administration to intimidate the media and the press. On Monday, Trump filed a demand of $ 15 billion against the New York Times and Penguin Random House, who was expelled by a federal judge for being “inappropriate and inadmissible.” This follows a lawsuit against the Wall Street Journal and the owner Rupert Murdoch that Trump filed in July. And ABC and CBS each reached multimillionaire settlements with Trump earlier this year despite the fact that the statements against them were legally weak.
At the same time, Trump has issued executive orders against law firms for his speech and defense. He has attacked universities, including Harvard and UCLA for fund cuts, often due to the lack of taste for the speech of his faculty, researchers and administrators. Earlier this week, Atty. General Pam Bondi said the government could soon process people, so it considered a hate speech, although the Supreme Court has repeatedly maintained that such expression is constitutionally protected.
It is time to be very concerned about freedom of expression in the United States. The story shows that it can be lost so easily. There cannot be democracy without it.
Erwin Chemendnsky, dean of the UC Berkeley Law Faculty, is a writer who contributes to the voices.
