On Wednesday, President Donald Trump's appointed Federal Communications Commission (FCC) chairman issued a threat that preceded ABC's decision to take late-night host Jimmy Kimmel's show off the air. And one legal analyst has found a recent Supreme Court case showing that the Trump administration would likely lose badly if Kimmel decided to sue.
In a Thursday essay for Slate, legal writer Mark Joseph Stern laid out the chain of events that led to Kimmel's show getting pulled on Wednesday. After a monologue earlier this week in which Kimmel alleged that "the MAGA gang" was attempting to "score political points" by casting slain far-right activist Charlie Kirk's alleged killer as a leftist, FCC chair Brendan Carr announced that he was contemplating revoking local ABC affiliates' broadcast licenses if they continued to air Kimmel's show. Nexstar — which owns television stations in more than 100 major media markets — then announced it was preempting Kimmel's show with other content. ABC then followed suit, prompting intense backlash. Stern observed that Nexstar is currently angling for FCC approval to acquire competitor Tegna, which would allow it to broadcast to roughly 80 percent of American households.
On Thursday, Trump appeared to take his offensive even further, saying on Air Force one that he was considering taking action against broadcasters for airing content critical of him and his administration. Stern pointed out in his Slate essay that this is "flagrantly unconstitutional," flying directly in the face of a unanimous Supreme Court decision in which all nine justices agreed on a fundamental free speech issue.
According to Stern, the 2023 National Rifle Association v. Vullo case directly applies to the Trump administration's threats to broadcasters in the wake of Kimmel's monologue. That case stemmed from the NRA suing the State of New York, alleging that regulatory agencies in the Empire State were pressuring banks and insurance companies to drop the NRA as a client over its pro-gun advocacy.
Liberal Justice Sonia Sotomayor wrote the majority opinion, which was joined by all eight of her colleagues. Stern pointed to one line in particular that brought all nine members of the High Court together in a rare unanimous ruling.
"Viewpoint discrimination is uniquely harmful to a free and democratic society," Sotomayor wrote. "...A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf."
"This is the constitutional rule that is relevant to Kimmel’s firing. And it illustrates why this episode is such an affront to the First Amendment," Stern wrote. "Carr made it abundantly clear that ABC, along with local affiliates, would face adverse regulatory action if they did not pull Kimmel’s late-night show. Nexstar, which owns many of those affiliates, almost immediately yanked the show. And Nexstar is currently trying to acquire its rival—a move that would require FCC approval."
"No one at the company could miss the implication of Carr’s threat. If Nexstar did not punish Kimmel for his speech, the FCC chair would do things 'the hard way,'" he added. "That almost certainly meant heightened scrutiny, and perhaps rejection, of Nexstar’s pending acquisition. It could also mean revocation of Nexstar and ABC’s broadcast licenses. That is plainly how this FCC does business."
Click here to read Stern's full essay in Slate.