Brendan Kerr is quite straightforward. He mentioned, “We can do this in a simple or difficult way.” This was in relation to his warning about remarks made by comedian Jimmy Kimmel concerning Charlie Kirk’s murder. Kerr, the head of the Federal Communications Commission, suggested that ABC’s broadcasting license could be at risk, which would essentially mean the end for the network.
“These companies can take measures regarding Kimmel,” he stated. He ominously added that “more work will be done beyond the FCC.” Disney, which owns ABC, moved swiftly to curb Kimmel’s comments, likely aiming to diffuse potential conflict with President Donald Trump.
Even some of Kerr’s Republican colleagues were critical. Senator Rand Paul (R-Ky.) remarked that the situation was “absolutely inappropriate.” Meanwhile, Senator Ted Cruz (R-Texas) took it a step further, arguing, “What the government says can be incredibly dangerous. If you’re not fond of a certain speech, we might threaten to take you off the air.” He drew comparisons between Carr’s tactics and organized crime, likening the threats to moments from “Goodfellas.”
Or maybe “The Godfather.” Kerr’s approach feels like a strong-armed offer to stations that they can’t refuse. Fortunately, larger companies still have the option to resist such pressures, at least, for now.
After the incident, Kimmel adopted a calmer stance. He expressed gratitude to Disney for supporting him, but cautioned that, “this puts them in a risky position.” Consequently, several major broadcasting networks opted not to air his show, slicing away about 25% of his audience. They ultimately reconsidered following public pushback.
It’s critical not to overlook the chilling effect this has on free speech. Disney may still be standing, but it’s feeling the pressure. Many comedians and journalists may self-censor, with employers weighing in on their creative freedoms. Timothy Snyder, a well-known scholar on authoritarianism, notes that such caution shapes our limits and actions.
Despite its questionable constitutionality, Kerr’s threats seem effective. “The FCC doesn’t exist to regulate speech under the guise of ‘public interest,'” he stated back in 2019. Currently, he seems to be exploiting a divide between what FCC broadcasters appear to accept and what courts ultimately uphold in contentious situations.
Kerr references policies from 1949 and 1992 that require speakers to prove their statements are knowingly false, both of which rest on the ambiguous “public interest” criteria from the 1934 Communications Act. Regardless, this isn’t enough to overcome First Amendment protections.
The government lacks the authority to restrict expression based on its content or message. This has been reiterated in various judicial decisions, affirming even false speech is constitutionally protected. Courts have previously noted that determining what constitutes balanced private expression should be left to the speakers and their audiences, not to the government’s biases.
A coalition of over 70 legal experts and free speech advocates contend that there’s no legal basis for Kerr’s claims, as they infringe on both the First Amendment and the right to due process. Our group’s letter thoroughly outlines these issues. Ultimately, Kerr himself has acknowledged that newsroom decisions about story coverage and framing should not fall under government scrutiny or intervention.
Kerr argues that this situation is different. He suggests that Disney’s choice to suspend Kimmel reflected audience preferences, describing it as part of a broader shift in the media landscape, influenced in part by President Trump’s administration. However, he shouldn’t dictate to media outlets what their audience wants. As it stands, media companies are navigating a “permission structure” to inform their editorial choices. The Supreme Court has stated that the First Amendment demands the government respect such judgments made by speakers and audiences.
In other words, as the saying goes: “fuggedaaboutit!”
Berin Szóka leads TechFreedom, a nonpartisan think tank focused on internet law and policy, with two decades of experience practicing telecommunications and free speech law.
