Jimmy’s Back. But the Threat to Free Speech hasn’t Passed

That TV host Jimmy Kimmel was suspended for a few days because of his on-air comments is, in itself, not a big deal for the freedom of speech. That the Federal Communications Commission threatened the American Broadcasting Company over his comments is a big deal. It’s even worse that ABC executives bent the knee, even for a short time, to Donald Trump, and that ABC and CBS have done it before.

Jimmy Kimmel mocked Trump for using the Charlie Kirk assassination to score points against the left, when, Kimmel implied, the assassin was a MAGA guy. That Kimmel was mistaken about that gave Trump a chance to stick his thumb in ABC’s eye. Brendan Carr, Trump’s man at the Federal Communications Commission, warned ABC affiliated stations that they were “running the possibility of fines or license revocations from the FCC” if they “continue to run content with a pattern of news distortion.”

And Carr said, “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… They have a license granted by us at the FCC, and that comes with it an obligation to operate in the public interest.”

Trump echoed the statement. “Maybe their license should be taken away,” he was quoted as saying, as reported in the BBC.

Some people will want to let this go, because ABC is taking Kimmel back. But the whole episode is ominous for the freedom of broadcasting. This will go down in media history — and it’s not clear that it’s over. It’s important that ABC holds its ground.

The president and the FCC chairman were not calling for honest, unbiased journalism. They were calling for retribution. I understand the feeling; conservatives bellyached my whole adult life that the national media was against them. They were not wrong about that — at least, not until Fox came along. But the American system, based on the First Amendment, does not give the government the power to police the speech of the people. There are a few exceptions — libel, slander, perjury, fraud — but the government has no general power to seek out and punish lies — on or off the air. And that’s a good thing. Because if officials get that kind of power, they will label what they dislike as lies and shut down all that is not sweet to their ears. 

Back in the 90s, I worked in a part of the world where there was no First Amendment. My employer, Asiaweek, was a magazine published in Hong Kong. Then a British territory, Hong Kong offered us freedom of the press, but our magazine circulated in places like Singapore, where freedom was restricted. On one occasion, officials of Singapore’s government threatened to penalize our magazine for referring to their “colorless foreign minister.” They labeled our words “gratuitous disparagement.” That’s how petty they were.

No government officials should be allowed to judge news coverage about themselves. One of the first rules I learned in my newspaper career was never to allow anyone you’re interviewing, official or not, to review your copy before it goes to press. People will say, “Let me check it for accuracy.” But if you let them, they will want to rewrite quotes and add new ones. They will argue with your tone, your logic, your choice of words. If your piece is about them, and if they are strong-minded (and most media subjects are) they will try to take charge of it. The result will not be journalism, but advertising — and with a politician, political advertising.

Was Donald Trump being as petty as those Singaporean guys I remember from 35 years ago? Consider his lawsuit against the New York Times Company and Penguin Random House, which published a book about Trump written by Times employees. In the lawsuit, Trump claims that the Times has been engaged in “industrial-scale defamation and libel against political opponents.” through a series of articles. “As such, the Times has become a leading, and unapologetic, purveyor of falsehoods against President Trump…”

That the New York Times’ is anti-Trump is no news. Most of the legacy press is. But falsehoods? Injury? Trump’s lawsuit cites as an example of falsehood a Times interview in October 2024 with John Kelly, Trump’s chief of staff in his first term. The Times’ headline is, “As Election Nears, Kelly Warns Trump Would Rule Like a Dictator.” That’s a falsehood? Trump thinks so. To him, all his critics are liars, and all such liars are open to punishment from the government he commands.

Our president, who is reported to have a net worth of $7.8 billion, claims in his lawsuit that his “personal brand alone” — his name — is worth more than $100 billion. His lawsuit says the Times and Penguin Random House caused “massive economic damage and injury to his future financial prospects.” To compensate the financially injured president of the United States, his lawyers demand that Penguin Random House and the New York Times pay $15 billion, a figure considerably greater than the market value the New York Times Company has built up over the past 174 years. (Penguin Random House is privately held, but its market value is probably smaller than that of the Times.)

Some on the right — Christopher Rufo is one —cheered on the government’s assault on the Democrat-friendly media. For them, the fight is all about making your opponents eat sand. This is a dangerous move for the American right. “I hate what Jimmy Kimmel said,” said Senator Ted Cruz, Texas Republican. “But let me tell you, if the government gets in the business of saying ‘we don’t like what you, the media, have said, we’re going to ban you from the airwaves’ … that will end up bad for conservatives… We should not be in this business. We should denounce it… We shouldn’t be threatening government power to force him off-air.”

As I write, the news is that Kimmel is coming back on the air. But the threat remains. Trump and Carr brandished the weapon, and everyone in the broadcast industry will remember it. It will intimidate them, even if they say that it won’t. That is one of the lessons I learned as a magazine journalist in Hong Kong. We told our readers that we would not let Singapore’s threats affect what we wrote, but we were lying to our customers (and ourselves). It did affect what we wrote.

And if one side does it, the other side will, also. I doubt if mainline Democrats are eager to make the sort of threat Trump is making, but the left wing of their party has no such inhibition. They will do whatever works: pack the Supreme Court, delicense Fox News, etc., once they gain power, which at some point they will.

Furthermore, the left believes deeply that the broadcast spectrum is public property. Legally they are right about that, according to a law passed during the New Deal. But in today’s industry, broadcast spectrum operates as de facto private property. For the FCC to delicense a TV station is a rare event, and they have never delicensed a network. And that’s a good thing, because if you want journalism to be independent of the state, it needs private rights, a place of its own on which to stand. Formal rights would be better, but de facto rights will do.

Cruz’s words are wise for another reason. Ever since the Citizens United decision, the left has been saying that it was wrong for the Supreme Court to recognize First Amendment rights for corporations. The left will grant free speech to unions — their pals, they think — but not to companies.

But whose First Amendment rights were violated in the suspension of Jimmy Kimmel? Not Jimmy Kimmel’s. He had the same right to mock Donald Trump as he had before, and that you and I have today. Brendan Carr didn’t threaten Jimmy Kimmel; he threatened corporations — the owners of ABC affiliated TV stations, and through them, the American Broadcasting Company and its parent, the Walt Disney Company. And who bent the knee to Donald Trump? Not Jimmy Kimmel; his honor is intact. The American Broadcasting Company did, for a few days.

Anna M. Gomez, the lone Biden appointee on the FCC, duly condemned Trump for trampling on the First Amendment. And in the days before Jimmy Kimmel was reinstated, Gomez did something better. She blamed the American Broadcasting Company for its “shameful show of cowardly corporate capitulation.” Speaking to Bloomberg News, she said, “Every time they capitulate, they are harming our democracy.”

As I write, ABC’s capitulation has been canceled. Someone at Disney woke up. They need to stay awake. I hope they came to the conclusion that for whatever reason — strengthening democracy or the company they work for — that a media company needs to keep its First Amendment rights, exercise them vigorously, and, if necessary, go to the mat for them.

Newspapers have done that. Hollywood has celebrated the courage of corporate media owners in such films as The Paper and All the President’s Men. It’s good that ABC and Disney have made a counter-move, but I’m not so sure Hollywood will make a movie out of it.