According to the latest news reports, Jimmy Kimmel is negotiating a return to late night after being yanked off the airwaves following his deplorable comments implying that Tyler Robinson, the alleged murderer of Charlie Kirk, was part of the “MAGA gang.” Of course, everything we have learned about Robinson suggests he was not himself part of MAGA.
Kimmel should not have implied otherwise. But he’s not alone, of course. Incorrect notions about the suspect’s political tribe have remained enduringly popular in liberal media circles; one of the top mainstream liberal Substack writers, Heather Cox Richardson, wrote last week that the motive of the alleged shooter “remains unclear.” This is simply not true: Interviews with Robinson’s friends and family members, as well as text messages between Robinson and his roommate — his transgender romantic partner — paint a clear portrait of a man who found Kirk’s conservative views “harmful.”
While Kimmel is a comedian rather than a newscaster, given how paranoid the mainstream media is about the spread of so-called misinformation, the criticism of Kimmel on this subject was well-deserved. And private media companies are allowed to make decisions about their own programming, and decide they don’t want to employ, broadcast or platform someone they disagree with, or someone who is losing money because they audience doesn’t like it.
Free speech means freedom from government coercion — it does not mean freedom to say whatever you want on somebody else’s dime. And so the decision to suspend Kimmel was made by ABC after Nexstar Media and Sinclair Broadcast Group decided not to air him on their local stations. (In the interest of full disclosure, Nexstar is the parent company of The Hill.)
But here’s the bigger issue: While it’s fine for a private business to take Kimmel off the air, it’s not OK for the government to take Kimmel off the air. And, unfortunately, the Federal Communications Commission very unwisely decided to insert itself in this matter.
Brendan Carr, chair of the FCC, not only criticized what Kimmel had to say, he also implicitly threatened the broadcasters. Take a look at what he said during an interview with conservative influencer Benny Johnson: “We can do this the easy way or the hard way.”
This not an idle threat. The FCC licenses broadcast channels, and can fine them or even take them off the air. The FCC can make life very difficult for companies that defy it.
I’ll say it once again: Private companies have the right to determine their programming as they see fit, and a washed-up comedian telling lame jokes about a subject he is clearly misinformed on — for a declining number of viewers, as part of a media format that is antiquated and perpetually losing money — is not a recipe for riveting television. Letting Kimmel and the rest of the late-night crowd go extinct is perfectly fine. It’s a business decision.
But it’s not the FCC’s decision.
As Glenn Greenwald put it, “This shouldn’t be a complicated or difficult dichotomy to understand. Jimmy Kimmel is repulsive, but the state has no role in threatening companies to fire on-air voices it dislikes or who the state believes is spreading ‘disinformation,’ which is exactly what happened here.”
Moreover, the Trump administration’s actions are functionally equivalent to the Biden administration’s attacks on private social media companies, which caused numerous free speech infringements during the COVID-19 pandemic. Recall that President Biden, who accused Facebook of “killing people” when it declined to censor anti-vaccine content, as well as his comms staffers were likely motivating factors behind a whole host of regrettable moderation decisions made by Facebook at the behest of the White House, the Centers for Disease Control and Prevention, and other government agencies.
When federal employees use the threat of regulation, fines and other forms of punishment to induce private companies into self-censorship, it’s known as jawboning. Whether the practice violates the First Amendment — which constrains the government’s ability to restrict speech — is not an entirely settled matter.
In Murthy v. Missouri, the Supreme Court declined to rule that the Biden administration had violated the First Amendment rights of social media users; the majority decision, however, had to do with standing, and did not actually address the arguments of the plaintiffs. Many free speech scholars rightly believe that the First Amendment rights of private media companies and their users will not be protected until and unless the Court makes clear that this sort of behavior from federal bureaucrats — jawboning — is wrong.
Ironically, Carr has strongly denounced jawboning in the past, and in general been a strong supporter of First Amendment rights. He frequently called out the Biden administration for engaging in this very practice.
There is simply no way to square this circle: If it’s wrong for the Biden administration to pressure social media companies to serve the public interest (as defined by Biden) and censor fraught content, then it is wrong for the Trump administration to pressure broadcasters to enforce a Trump-defined public interest.
Don’t just take my word for it: Sens. Rand Paul and Ted Cruz both agree with me.
Cruz said the FCC’s actions here were “dangerous as hell” and that all conservatives should oppose the FCC trying to pressure companies to make editorial decisions of this kind. And Paul said the following: “The government’s got no business in it and the FCC was wrong to weigh in. I’ll fight any attempt by the government to get involved with speech.”
Cruz and Paul are exactly right.
Robby Soave is co-host of The Hill’s commentary show “Rising” and a senior editor for Reason Magazine. This column is an edited transcription of his daily commentary.
