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Jimmy Kimmel, the FCC, and the First Amendment: An Explainer:
What Happened
Jimmy Kimmel’s late-night show was abruptly suspended by ABC after affiliates, including Nexstar, refused to air it. The trigger? On-air remarks about conservative activist Charlie Kirk.
But here’s the twist: around the same time, FCC Chair Brendan Carr publicly warned that ABC could face regulatory “consequences” if action wasn’t taken. Soon after, Kimmel was off the air.
That timing raises a constitutional question: was this really ABC’s choice, or government intimidation by proxy?
Why This Matters
ABC and Disney are private companies. They can cancel shows. But the First Amendment doesn’t just stop censors from shutting down newspapers—it also stops the government from coercing private players into doing the silencing for them.
When regulators with power over broadcast licenses and merger approvals hint “fix this or else,” it crosses a line. That’s what courts call jawboning.
The Legal Backdrop
The Supreme Court has condemned jawboning for decades:
Bantam Books v. Sullivan (1963): “suggestions” to book distributors were unconstitutional threats.
Backpage v. Dart (2015): a sheriff’s letters to credit card companies were censorship by intimidation.
NRA v. Vullo (2024): the Court unanimously held that threats of regulatory punishment to silence disfavored groups violate the First Amendment.
And federal law is explicit: the FCC has no power of censorship over broadcast content (47 U.S.C. § 326).
How Strong Is Kimmel’s Case?
Against ABC/Disney: weak. They’re private actors; no constitutional claim.
Against the FCC/Chair: stronger. If Kimmel shows that threats about licenses and mergers directly influenced ABC’s suspension, the case looks like Vullo all over again.
The legal test turns on whether the FCC’s remarks were just political bluster—or credible threats of government punishment. Discovery of emails, calls, or back-channel pressure could make the difference.
What Comes Next: Things to Watch
Court Filings: If Kimmel’s lawyers move quickly, look for a request for a Temporary Restraining Order or Preliminary Injunction against the FCC. That would test the jawboning theory in real time.
Discovery Battles: Subpoenas to ABC, Disney, and Nexstar could reveal whether FCC officials applied direct pressure behind closed doors.
Political Fallout: Expect congressional hearings and press attention. If the FCC is perceived as a political weapon, bipartisan backlash could build.
Ripple Effect: Other media organizations—especially those already critical of the administration—will be watching closely. A win for Kimmel could embolden them to push back against regulatory threats.
The Public Lens: Kimmel’s case may become less about late-night comedy and more about whether government can decide which voices get airtime in America.
The Stakes
This isn’t about whether Kimmel’s jokes are funny. It’s about whether regulators can dictate what Americans get to watch.
If jawboning works here, it won’t stop at late-night comedy. Journalists, musicians, and podcasters could be next.
Sources & Cases
Bantam Books v. Sullivan, 372 U.S. 58 (1963)
backpage.com v. Dart, 807 F.3d 229 (7th Cir. 2015)
NRA v. Vullo, 602 U.S. 254 (2024)
Communications Act, 47 U.S.C. § 326