Brendan Carr, as FCC Chair, made threats against ABC relating to the broadcast of Jimmy Kimmel’s show. Legal experts, free speech advocates, public officials, and the ACLU have argued that Carr’s conduct violates the First Amendment by silencing the company (and Kimmel’s) right to freedom of speech from government censorship. Other legal experts contend that Carr’s actions have not yet met the threshold for a clear legal First Amendment violation, because Carr made threats and recommendations but did not take direct regulatory action against ABC. He was only “jawboning.”
But Carr didn’t have to take “direct retaliatory action;” all that was needed was a serious threat to Disney’s “bottom line” to gain corporate compliance to a clearly unconstitutional threat that the FCC might retaliate. Meanwhile, Bob Iger at Disney decided not to fight something that was just “jawboning” and would not be legal if Carr carried out his threats.
Carr several times publicly described Jimmy Kimmel’s remarks as “truly sick,” “really, really sick,” and referenced them as “the sickest conduct possible” in multiple interviews and media appearances.
Having already posted condolences to Charlier Kir’s family and sending “love” to them on Instagram, Kimmel went on his show to remark that “the MAGA gang is desperately trying to portray this individual who murdered Charlie as anything other than one of their own, attempting to gain political leverage from it.” He also commented on Trump’s own words when asked about Kirk’s murder, a brief response before pivoting to many words about his big, beautiful ballroom. “This is not how an adult grieves the murder of someone he calls a friend. This is how a four-year-old mourns a goldfish,” Kimmel said.
So, Kimmel’s MAGA remark was false speculation, and misleading, but there is an ocean of misleading statements on both mainstream and social media. Under the First Amendment, “false,” “sick” or even “hateful” speech is protected; many people have said that Charlie Kirk engaged, at times, in divisive speech, but always stayed within the legal limits of free speech protected by the First Amendment. In the United States, “hate speech” or “sick speech” as prohibited categories of speech simply do not exist, and nearly all speech is protected unless it incites imminent lawless action or constitutes a direct threat.
But individual and corporate speech –– whether it’s hateful, “sick,” false, or evinces contempt for a public official –– is evidently not protected against government “jawboning.” No surprise, though, that Carr has not been jawboning Fox News for keeping Brian Kilmeade around. During a segment on “Fox & Friends,” Kilmeade controversially said that homeless people with mental illness who refuse care should be subject to “involuntary lethal injection or something, just kill them.” Sounds pretty “sick,” right?
Kilmeade waited four days to apologize, but only after widespread public outrage. Carr never called him out; Kilmeade called his own statement “extremely callous” and acknowledging that many homeless individuals with mental health issues deserve empathy and compassion.
So, if you think that a partisan political appointee in charge of federal communications law would only threaten “sick speech” he disagrees with, think again! There’s no law that says public officials can’t be partisan in how they apply the law.