Kimmel, Coercion, and the Public Interest Standard: The Problem of Boundless Government Power
Talk-show host Jimmy Kimmel’s suspension by ABC following pushback from affiliate stations about comments he made Sept. 15 about the alleged killer of Charlie Kirk has been major news.
The timing of the decisions by affiliate groups Nexstar and Sinclair to preempt Jimmy Kimmel Live! from their programming schedule was noteworthy, in that both came just hours after Federal Communications Commission (FCC) Chair Brendan Carr appeared on a conservative podcast encouraging the affiliates to “step up” in the wake of Kimmel’s comments. Carr noted that the broadcasters have a “license granted by us at the FCC that comes with it an obligation to operate in the public interest,” adding that:
We can do this the easy way or the hard way. These companies can find ways to change conduct to take actions, frankly on Kimmel, or there’s going to be additional work for the FCC ahead.
The implication certainly would appear to be that the commission might exercise its authority to issue fines or revoke licenses for a pattern of news distortion if no action was taken with respect to Kimmel’s comments.
While Carr’s apparent threats may appear on their face to be a First Amendment violation, current caselaw suggests that it would be difficult for Jimmy Kimmel to be able to successfully challenge this conduct. It also raises the question of why broadcasters are treated differently under the law to begin with. A better path forward would be to recognize the drastic changes in the modern media marketplace, and to give broadcasters full First Amendment protections.