Kimmel suspension raises First Amendment questions, legal scholars say

Hollywood is still reeling over Disney and ABC’s decision to pull the Jimmy Kimmel Show off the air in the wake of his comments about the alleged killer of Charlie Kirk.

Now legal experts are debating the role of the Trump administration in that decision and whether what was done was a violation of the First Amendment.

“Going after a media network because you don’t like the opinions espoused by one of its hosts is completely against the Constitution,” said University of Chicago Legal Scholar Jonathan Masur. “ABC is a private company and they can suspend Jimmy Kimmel if they want to. But what’s frightening is the FCC threatening to revoke their broadcast license if they don’t suspend him.”

FCC Chairman Brendan Carr said on CNBC that it’s a mistake to focus on the specifics of the Kimmel suspension. Carr said we are in the midst of a massive shift in the dynamics of the media ecosystem for many reasons. He cited what he called the “permission structure” created by President Trump’s election. He warned that “we are not done yet.”

Carr said Kimmel was not suspended because of a “joke,” but because he “misled the American public” about the alleged killer in the Kirk case.

“It was appearing to directly mislead the American public about a significant fact that probably one of the most significant political events we’ve had in a long time, for the most significant political assassination we’ve seen in a long time,” Carr said.

A day before criminal charges were filed against Kirk’s alleged killer, Kimmel accused Republicans of trying to mischaracterize the shooter.

“The MAGA Gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it,” he said.

Harold Krent, of the IIT Kent College of Law said it would be unconstitutional for the FCC to revoke the licenses of broadcast networks and stations for political reasons.

“What the agency is doing instead, so far, is trying to pressure individual stations, especially those that need other regulatory approval to taking a position that it wants like taking Colbert off the air or getting rid of Jimmy Kimmel,” he said.

CBS cancelled the “Late Show with Stephen Colbert” just before it received approval for a merger with Skydance. ABC group owner Nexstar is currently seeking regulatory approval for a merger with Tegna, another major owner of ABC affiliated stations.

“This is part of a tactic that the individuals in the government are trying to use the power to silence the press and silence criticism of the administration,” Krent said.

But Carr disagrees.

“Our goal and our obligation is to make sure that broadcasters are serving the public interest,” he said. ”If there are local TV stations that don’t think that running that (Kimmel) program does it, they have every right under the law and their contracts to pre-empt it.”

Masur said the natural place to challenge such FCC actions are in the courts, but many media companies are reluctant to do so.

“Certainly, we would all be better off if people would stand up and fight against what the administration is doing and the attacks it’s made against free speech. But these are private companies that have duties to their shareholders and a bottom line to look after,” he said.