“The constitution doesn\u2019t guarantee Kimmel a talk show, but it does guarantee that the government won\u2019t quash his speech because of what he chooses to say.<\/p>\n\n\n\n
…<\/p>\n\n\n\n
The basic facts of Kimmel\u2019s suspension are straightforward. The late-night host has been accused of mischaracterizing the motives of the alleged assassin of conservative activist Charlie Kirk, suggesting he may have hailed from the political right. On Wednesday, the chair of the Federal Communications Commission, Brendan Carr, appeared on Benny Johnson\u2019s podcast and described Kimmel\u2019s remarks<\/a> as part of a \u201cconcerted effort to lie to the American people.\u201d The FCC, he said, has \u201cremedies that we can look at.\u201d He added: \u201cWe can do this the easy way or the hard way \u2026. These companies can find ways to change conduct and take action, frankly, on Kimmel, or there\u2019s going to be additional work for the FCC ahead.\u201d<\/p>\n\n\n\n After Carr\u2019s threat, Nexstar, an owner of many ABC affiliate stations, said that it wouldn\u2019t run Kimmel\u2019s program \u201cfor the foreseeable future\u201d because of his Kirk comments. (Notably, Nexstar is planning to acquire a rival company, Tegna, in a $6.2 billion deal that will require FCC approval.)<\/p>\n\n\n\n Mere hours later, ABC had removed Kimmel from the air.<\/p>\n\n\n\n When the Supreme Court dismissed the Covid-social media suit against the Biden administration, it held that the plaintiffs lacked a legal right to sue \u2014 called standing \u2014 because they could not link anything the federal government did to the suppression of their speech. As Justice Amy Coney Barrett put it, the flaw in the case was a \u201clack of specific causation findings with respect to any discrete instance of content moderation.\u201d<\/p>\n\n\n\n Here, by contrast, the evidence of \u201cspecific causation\u201d is plain to see: Carr threatens ABC unless it sanctions Kimmel. ABC does as Carr asks. The FCC, to be sure, does not have authority<\/a> to police the alleged truth of statements made on television. But that doesn\u2019t mean that the agency can\u2019t use its investigative powers to raise costs for targeted media outlets and it can clearly exert its influence on any potential acquisitions. And for all his recent talk about supporting free speech<\/a>, this isn\u2019t Carr\u2019s first pressure campaign against a perceived antagonist of President Donald Trump. In July, he issued threats against Comcast<\/a>, demanding more favorable coverage of Republicans from its NBC affiliates.<\/p>\n\n\n\n The Trump administration also has a clear model when it comes to leaning on media firms to silence speech it dislikes: The president\u2019s executive orders punishing law firms for their association with disfavored clients and advocacy of out-of-season causes likewise deployed regulatory tools to try to achieve plainly impermissible censorship. Like Carr\u2019s action this week, those executive orders in part worked through the economic pressure firms experienced, even as their First Amendment rights were being violated.<\/p>\n\n\n\n Although the Supreme Court did not ultimately decide the merits in the social media case, no justice doubted the clear-as-day First Amendment principle that, as Alito explained, \u201cgovernment officials may not coerce private entities to suppress speech.\u201d Indeed, less than a month beforehand, the unanimous court held in a different case<\/a> that the First Amendment \u201cprohibits government officials from relying on the \u2018threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression\u2019 of disfavored speech.\u201d<\/p>\n\n\n\n In a separate opinion, Justice Neil Gorsuch<\/a> explained what a plaintiff needed to show to get into court: Could the government\u2019s conduct, when \u201cviewed in context,\u201d be \u201creasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff \u2019s speech?\u201d<\/p>\n\n\n\n This principle is both simple and sound: The government can\u2019t do indirectly, through shadowy threats and mafia-like intimidation, what it is barred from doing directly. Indeed, this is a principle that even Trump apparently believes in: In July 2021, he filed civil actions against Facebook<\/a>, Twitter<\/a> and YouTube<\/a> alleging that unconstitutional government jaw-boning of those firms led to the take-down and shadow banning of his and others\u2019 speech.<\/p>\n\n\n\n Kimmel may have contractual remedies against ABC. But he also has a powerful constitutional claim for prospective relief and damages against the federal government much like the one that Trump sought to vindicate in 2021. A principled consistency would require those who objected to the Biden administration\u2019s engagement with social media firms to support Kimmel. (To be clear, I am not holding my breath.)”<\/p>\n\n\n\n