The Troubling Aftermath of the Charlie Kirk Assassination, Part 2: Jimmy Kimmel

On Tuesday, I posted my concerns about the “cancel culture” on steroids directed at social media comments about Charlie Kirk’s murder—even posts that denounced political violence. It is getting even worse. Yesterday, two major TV station owners—Nexstar and Sinclair—announced that their stations would preempt the Jimmy Kimmel show for comments Kimmel made on Monday night. Disney—the owner of the ABC Network—followed up with a network-wide suspension of the Jimmy Kimmel Show.

As I noted in my previous post, the First Amendment does not apply to the actions of private entities such as Nexstar, Sinclair or Disney. Usually, Kimmel would need to rely on the terms of its contract with Disney—as well as torts such as intentional interference with a contract—for any relief. That, however, is the general rule. Where an injured person can point to actions of the government that led to the injury, the First Amendment very much comes into play.

Indeed, during COVID-19, there were several cases against social media companies for censoring pandemic content, allegedly at the urging of federal officials. In the end, the Supreme Court found that the plaintiffs had failed to show that government action had caused the censorship, but it did not reject the argument that the First Amendment can be violated if the government coerces private companies to take action that, if done by the government, would violate the First Amendment.

From what we know now—with the caveat that we don’t know the full story—that may very well have happened here.

So what did Jimmy Kimmel say that caused such a severe reaction? He said nothing at all about Charlie Kirk, much less applaud his murder. (Indeed, on the day Kirk was killed Kimmel used social media to condemn the attack and send his love to the Kirk family.)

Instead, he focused on how Trump and the MAGA community were responding to the murder. Kimmel said: "We hit some new lows over the weekend, with 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 also poked fun at Trump who seemingly changed the subject altogether after talking about the murder. “This is not how an adult grieves the murder of someone he calls a friend. This is how a four-year-old mourns a goldfish," said Kimmel.

Given what we know now, calling the murderer “one of them” was a factual misstatement. The Kimmel show on Monday, however, was filmed before lots of the information we now have about the murderer—such as his texts—was not available and the motivation was still very much in question. It was filmed before the charging documents were filed against the murder on Tuesday.

Regardless of this context, the response was swift—and it appears to have started with the Trump Administration. The Federal Communications Commission chairman, Brendan Carr—the head of an agency that regulates broadcast stations such as those owned by Nexstar and Sinclair—was on the Benny Show and he made several comments about the Jimmy Kimmel Show: He called Kimmel's comments "some of the sickest conduct possible," and said that there could be "a path forward for suspension over this." He said, "look, we can do this the easy way or the hard way," and “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."

In other, he announced that the FCC would take action against the stations airing Kimmel unless they took action— "look, we can do this the easy way or the hard way.”

While we don’t have access to the internal deliberations at Nextar, Sinclair or Disney, it is telling that all three took action only after Carr made these remarks on the Benny Show. Benny Johnson himself bragged that his show lead to the suspension of the Kimmel Show. It is also interesting that Nexstar wants to merge with Tegna—a huge transaction that will require FCC approval and the revision of FCC regulations that limit companies like Nexstar from owning a large share of the broadcast market. Apparently Sinclair also has matters before the FCC.

This screams “Nice set of TV stations you have there. It would be shame if we have to suspend you or not give you needed regulatory approvals.”

So Jimmy Kimmel may indeed have a First Amendment case against Brendan Carr.

More importantly, we have yet one more very serious effort by Trump Administration officials to censor speech they don’t like—an effort that so far is succeeding.