First Amendment Issues, Questions Raised in Jimmy Kimmel Situation
Sinclair Broadcast Group, the nation's largest owner of ABC affiliates, and Nexstar — which owns more than 30 ABC stations nationwide — announced on Friday, Sept. 26, that they will resume airing “Jimmy Kimmel Live!”.
“Our decision to preempt this program was independent of any government interaction or influence,” Sinclair said in a statement. “Free speech provides broadcasters with the right to exercise judgment as to the content on their local stations.”
In its announcement, Nexstar said: “As a local broadcaster, Nexstar remains committed to protecting the First Amendment while producing and airing local and national news that is fact-based and unbiased and, above all, broadcasting content that is in the best interest of the communities we serve.”
The decisions come days after ABC ended its suspension of Kimmel’s show.
Kimmel’s show had been suspended by ABC and preempted by Nexstar and Sinclair after the host and comedian made on-air comments about the response to the murder of political activist Charlie Kirk — and hours after the chairman of the Federal Communications Commission made comments that pressured ABC to take action against the late-night host.
In response to ABC’s decision to return the show, President Donald Trump posted on Truth Social: “I can’t believe ABC Fake News gave Jimmy Kimmel his job back. The White House was told by ABC that his Show was cancelled! ... I think we’re going to test ABC out on this. Let’s see how we do. Last time I went after them, they gave me $16 Million Dollars. This one sounds even more lucrative.”
In his return episode, Kimmel touched on a handful of topics and emphasized the importance of free speech, saying: “This show is not important. What is important is that we get to live in a country that allows us to have a show like this.”
What led to ABC’s initial decision to suspend Kimmel’s show?
During his Monday, Sept. 15 episode, Kimmel said, “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.”
He also said that “many in MAGA land are working very hard to capitalize on the murder of Charlie Kirk” and criticized President Trump for telling a reporter that he’s holding up “very good” following Kirk’s death and changing the subject to talk about construction of the White House ballroom.
“This is not how an adult grieves the murder of someone he calls a friend,” Kimmel said. “This is how a four-year-old mourns a goldfish.”
Kimmel was publicly criticized for these comments. The situation escalated when FCC Chairman Brendan Carr seemed to threaten regulatory action against ABC corporate owner Disney, the ABC network and individual stations that carry ABC programming.
Appearing on podcaster Benny Johnson’s Sept. 17 show, Carr said:
“In some quarters, there’s a very concerted effort to try to lie to the American people about the nature ... of one of the most significant, newsworthy public interest acts that we’ve seen in a long time. And what appears to be an action by Jimmy Kimmel to play into that narrative that this was somehow a MAGA or Republican-motivated person. If that’s what happened here with his conduct, that is really, really sick.
“And I’ve been very clear: From the moment that I have become chairman of the FCC, I want to reinvigorate the public interest [unintelligible]. What people don’t understand is that the broadcasters ... are entirely different than people that use other forms of communication. They have a license granted by us at the FCC, and that comes with it an obligation to operate in the public interest. ... Look, we can 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.”
Nexstar, which is seeking FCC approval of a major merger, quickly announced it would not air “Jimmy Kimmel Live!”, later noting that it had not been directly contacted by the FCC before making that decision. Sinclair Broadcast Group followed. ABC then said production of “Jimmy Kimmel Live!” would be suspended indefinitely.
A day later, Carr seemed to promise more actions of this type. Carr told CNBC, “We are in the midst of a massive shift in dynamics in the media ecosystem for lots of reasons, including the permission structure that President Trump’s election has provided. And I would simply say we’re not done yet with seeing the consequences of that shift.”
While private companies like ABC can make business decisions regarding the programming they carry without violating the First Amendment, Carr’s pointed statements might violate the First Amendment, because they come from the head of a government agency.
The president added new weight to Carr’s statements on Sept. 18, when he said of broadcasters and networks generally: “They're 97% against — they give me only bad publicity or press. I mean, they’re getting a license. I would think maybe their license should be taken away. It will be up to Brendan Carr. ... When you have a network and you have evening shows and all they do is hit Trump, that's all they do. ... They're licensed. They're not allowed to do that.”
In 2024, the Supreme Court ruled in NRA v. Vullo that “a government official cannot coerce a private party to punish or suppress disfavored speech on [their] behalf.” About a month later, in Murthy v. Missouri, the court said there needs to be clear evidence that a private company acted in direct response to that government coercion.
Can the government regulate content?
If the government directly punishes a broadcaster based on the content it airs (or coerces the broadcaster into self-censorship), significant First Amendment questions are raised. The First Amendment protects freedom of speech and of the press, including content on broadcast television stations. The FCC has the authority to regulate broadcast television and radio, but it must still abide by the First Amendment.
When the government regulates speech based on its content, it needs to show that there is a compelling reason for doing so and that the restriction in question is the best and most limited way to achieve that interest.
The Supreme Court has held that the unique characteristics of broadcast television (and radio) mean broadcasters can be regulated more closely than other media like newspapers, cable television and the Internet. Specifically, broadcast stations are scarce because there can only be a certain number of stations in any given market. And they are pervasive in that you have no idea what content awaits you when you turn on a television, whereas other media require at least one or more steps in order to access content, like subscribing to cable and choosing certain channels, typing a URL into a browser, etc.
The FCC must ensure that broadcast stations operate in the “public interest.” This is a broad standard that, unlike violations of other specific rules, typically is enforced not through fines or other enforcement action but rather through the major penalty of denying the station’s license renewal application. But license renewal is not something that would be jeopardized by a single misstep; the standard is simply, in the FCC’s own words, that the licensee “has served the public interest, has not committed any serious violations of the Communications Act or the FCC’s rules, and has not committed other violations which, taken together, would constitute a pattern of abuse.”
Even when it comes to lesser enforcement actions — most commonly fines — the FCC’s authority is not limitless. In addition to the First Amendment, Section 326 of the Communications Act — the statute that created the FCC and still governs its authority — prohibits the FCC from “censoring” broadcast stations. The FCC’s “The Public and Broadcasting” manual — an overview of its broadcast rules and policies — states: “Broadcasters — not the FCC or any other government agency — are responsible for selecting the material they air. The First Amendment and the Communications Act expressly prohibit the Commission from censoring broadcast matter. Our role in overseeing program content is very limited.”
The FCC has a policy that prohibits “news distortion.” But it is rarely used. According to a 2019 study, the FCC had not held a station in violation of the policy since 1999. Enforcement requires “a significant event and not merely a minor or incidental aspect of the news report.” In any event, the news distortion policy would not apply because Kimmel was not engaged in “news reporting.”
An FCC rule prohibits hoaxes but defines a hoax as an intentionally false statement designed to cause “substantial public harm.”
What’s the bottom line?
Kimmel is a late-night host and a comedian whose Sept. 15 opening monologue, specifically, offended some viewers. His right to express his opinions free from government punishment or interference is protected by the First Amendment, though ABC, a private company, can take action against him without violating the First Amendment. The television stations that broadcast “Jimmy Kimmel Live!” are also protected by the First Amendment. The FCC is empowered to regulate broadcasters, but this is mainly limited to issuing licenses and ensuring compliance with the terms of those licenses. The First Amendment and the Communications Act of 1934 limit the FCC’s power to regulate broadcasters’ content, and it traditionally has not done so unless there is an intentional attempt to substantially mislead the public.
In this instance, there is no evidence that any individual FCC-licensed station failed to act in the greater public interest. The statements Kimmel made in the Sept. 15 monologue could be countered easily in the marketplace of ideas. Any government speech that aims to threaten individual stations that carry ABC programming with loss of license or other regulatory action against Disney or ABC would be a wildly overbroad — and therefore unconstitutional — government response to Kimmel’s statements.
Kevin Goldberg is a vice president and First Amendment expert at Freedom Forum. He can be reached at [email protected].
What Is the Marketplace of Ideas?
The Next Battle Against Government Funding in Religious Schools?
Related Content