MIAMI — It is the announcement heard across the nation.
ABC made the decision to pull “Jimmy Kimmel Live” off the air indefinitely following the late-night talk show host’s recent remarks pertaining to the late Charlie Kirk.
“Robust political debate and public debate requires sometimes confronting things you don’t like,” said First Amendment Foundation Executive Director Bobby Block.
The decision comes at a time when Nexstar, which owns or operates 32 ABC affiliates, is seeking FCC approval to acquire Tegna.
“The government should not be playing the role of arbiter,” said Block.
But it is what happened just before, on a right-wing podcast, that is raising First Amendment questions after the Trump-appointed FCC chair Brendan Carr stated:
“This is a very, very serious issue right now for Disney. We can do this the easy way or the hard way. These companies can find ways to take action on Kimmel or there is going to be additional work for the FCC ahead.”
Florida International University law professor Howard Wasserman said: “In this case, the jaw-boning looks like the FCC threatening ABC with the loss of its broadcast license or disapproval of the merger in order to compel them to take action against Kimmel, to take Kimmel off the air.
“It was a very clear statement to the FCC, to ABC, that we are coming after you, or we might come after you, and ABC took steps.”
Added legal expert David Weinstein: “If the statement that was made by one FCC commissioner was a direct threat, an imposition of governmental authority, upon a private company, and how they operate themselves, and how people are employed by them speak, and their freedom of speech than it is in violation of the First Amendment, that is where the rubber is going to meet the road. Did the government tell ABC you have to remove this person for what he said?”
The First Amendment doesn’t apply to private companies, but it does protect all Americans from government interference.
“What it protects us from is governmental interference with our free speech, not a private employer’s and I think that is what is getting lost in the mix here,” said Weinstein.
Block said, “It seems to me that a government agency is trying to pick winners and losers when it comes to speech that it doesn’t like and speech that is does, and that is against the law. It is a violation of the First Amendment.”
“What I would like to see from Chairman Carr is what exactly, what laws were violated, what rules were broken,” Block said. He has not presented anything. The courts are very clear on this. You have the right to say things that make other people feel uncomfortable; people don’t have to listen to it, but you have the right to say it.”
Wasserman said it appeared Disney is following “the path of least resistance” to “earn the temporary praise of the FCC” instead of pushing back against the pressure and getting a court to determine it was unlawful.
He said this could leave the ABC network vulnerable to future attacks.
“What is going to happen if the FCC decides there is some other ABC programming they don’t like, they are going to come back and attempt to do the same thing,” he said.
Wasserman said the “public interest,” in relation to Carr’s comments, has “never been understood to allow the government to decide what the content of broadcast networks are.”
“They can’t dictate the programming, they cannot decide that one particular show is in the ‘public interest’ and one particular show is not,” he said. “That public interest language has always been understood as having to operate within First Amendment limits and no administration has ever tested the First Amendment limit like that.”
He said there are no examples of the government succesfully going after a broadcaster’s license over “purely political speech” or “the content of programming,” outside of limited examples like sexually explicit speech.
“Outside of that, there are no examples of saying, ‘We don’t like what is being said on this program and therefore you are going to lose your license.’” Wasserman said.
He warned that the power could one day be turned against those wielding it.
“It is very easy for when the next controversy rolls around, the target to be speech and speakers that you agree with,” he said. “This is why we protect all speech. We regard the threat of the government attacking ideas problematic, whether it is doing so directly or through threats on private entities.”
Local 10 News reached out to Disney, Nexstar and Tegna for comment but have not heard back as of the time of this story’s publication.
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