The resulting corporate decision to suspend Jimmy Kimmel from late-night television runs squarely afoul of the First Amendment. The constitution doesn’t guarantee Kimmel a talk show, but it does guarantee that the government won’t quash his speech because of what he chooses to say. Kimmel now has a straightforward suit for damages and forward-looking relief that he can and should file — not just against ABC, but also against the government officials who were the driving force for his embarrassing public disciplining.
The basic facts of Kimmel’s 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’s podcast and
described Kimmel’s remarks as part of a “concerted effort to lie to the American people.” The FCC, he said, has “remedies that we can look at.” He added: “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.”
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, “government officials may not coerce private entities to suppress speech.” Indeed, less than a month beforehand, the unanimous court
held in a different case that the First Amendment “prohibits government officials from relying on the ‘threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression’ of disfavored speech.”
In a separate opinion,
Justice Neil Gorsuch explained what a plaintiff needed to show to get into court: Could the government’s conduct, when “viewed in context,” be “reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech?”
This principle is both simple and sound: The government can’t 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,
Twitter and
YouTube alleging that unconstitutional government jaw-boning of those firms led to the take-down and shadow banning of his and others’ speech.