No, the Supreme Court Did Not Give Trump a License to Silence Jimmy Kimel

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ABC’s indefinite suspension of Jimmy Kimmel on Wednesday was, by all appearances, an act of government-coerced censorship designed to punish speech that the White House dislikes. After Kimmel bemoaned that “the MAGA gang” sought to exploit Charlie Kirk’s murder, Federal Communications Commission Chair Brendan Carr urged local affiliates to drop his late-night show. He also suggested that the FCC might penalize ABC and its affiliates if they did not cancel Kimmel, warning^[2] that the agency would undertake “additional work” to bring any necessary “remedies.” The message was clear: ABC and its affiliates could either “change conduct” or face the wrath of the FCC, including the revocation^[3] of broadcast licenses. (So could Disney, which owns ABC.) “We can do this the easy way or the hard way,” Carr proclaimed. The targets of his ire responded accordingly: Local affiliates promptly yanked Kimmel’s show, and ABC removed the host until further notice, a move that President Donald Trump promptly praised^[4].

The FCC’s retaliation against Kimmel’s criticism is a textbook violation^[5] of the First Amendment, as the agency’s lone Democratic commissioner has pointed out^[6]. Carr and other Republicans claimed the host falsely stated that Kirk’s alleged assassin was himself MAGA. But that doesn’t matter: The First Amendment generally prohibits the government from censoring even false or misleading speech^[7], with no carve-out for opinionated comedians.

Yet many conservatives are defending or even celebrating this attack on free expression, mocking progressives for ostensibly getting a taste of their own medicine. They’ve argued that the Biden administration set this precedent when it urged social media companies to throttle COVID misinformation during the pandemic. And they claim that, with liberal support, the Supreme Court let the Biden administration off the hook for this purported misdeed in 2024’s Murthy v. Missouri^[8]. So what’s good for the goose is good for the gander, and the Trump administration, through Carr, may now legally coerce ABC into censoring Kimmel. This argument that Murthy paved the way for Kimmel’s suspension has been made by Republican former Federal Election Commission Commissioner Brad Smith^[9], conservative litigator Ted Frank^[10], Washington Post columnist Jason Willick^[11], GOP policy wonk Avik Roy^[12], and plenty of^[13] other commentators^[14] on the right.

This reaction is preposterous on two levels. First, it’s just wrong to equate the Biden administration’s efforts to slow COVID misinformation with the Trump administration’s frontal assault on ABC. Carr’s threats against the network are far more direct and dangerous than anything Biden’s team ever did to curb lies about the virus or the vaccine. Second, the Supreme Court did not say in Murthy that the government can strong-arm private companies into silencing speech. Rather, it tossed the case on standing grounds, largely because it found no real evidence of unconstitutional censorship. Just a month earlier, however, the court unanimously reaffirmed^[15] that the First Amendment forbids the government from coercing companies into suppressing expression.

So the law is clear: Government officials can’t strong-arm private companies into censorship viewpoints they dislike. Carr’s pressure on ABC to cancel Kimmel appears to be flagrantly unconstitutional. And any attempt to justify it on the right is probably best understood as a cynical bid to embrace the Trump administration’s war on free speech as well-deserved comeuppance for a censorious left.

The facts of Murthy demonstrate why there is no real comparison between that case and Carr’s coercion of ABC. The plaintiffs, a group of individuals and red states, accused the Biden administration of forcing social media platforms into taking down COVID misinformation at risk of punishment by the state. U.S. District Judge Terry Doughty, a Trump appointee, embraced this fiction and ruled that the government had acted unconstitutionally. But when Doughty’s decision reached the Supreme Court, the case quickly fell apart. It turned out that the judge had selectively misquoted the record^[16] to make it seem like Biden officials had threatened platforms with penalties if they did not comply with the White House’s demands. In reality, though, no such direct coercion occurred. The plaintiffs built their argument on egregious factual misrepresentations^[17] which Doughty eagerly embraced. His opinion repeatedly misquoted key pieces of evidence^[18] to accuse officials of saying things that they did not.

In June 2024, the Supreme Court reversed Doughty^[19] by a 6–3 vote, with Justice Amy Coney Barrett writing the majority opinion. Barrett bristled with evident frustration^[20] over the district court’s distortion of the record; “unfortunately,” she explained, many of his factual findings “appear to be clearly erroneous.” She tossed out the case because the plaintiffs failed to demonstrate standing. That was primarily because they could not show that the Biden administration actually directed the removal of any posts even after exhaustive discovery.

Murthy was therefore a narrow decision that avoided the merits entirely. But the Supreme Court did confront the question of unlawful coercion, or “jawboning,” one month earlier in NRA v. Vullo^[21]. In that case, the National Rifle Association accused New York regulators of pressuring banks and insurers to cut ties with the organization in retaliation against its advocacy for gun rights. Writing for a unanimous court, Justice Sonia Sotomayor held that New York’s conduct, if proved, ran afoul of the First Amendment. “Viewpoint discrimination is uniquely harmful to a free and democratic society,” Sotomayor wrote. And it is no less harmful when done by a corporation on behalf of the state. So, the justice explained, “a government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”

In other words, under the First Amendment, “a government official cannot do indirectly what she is barred from doing directly.” They may not retaliate against expression through the threat of “regulatory hostility” toward “private intermediaries.”

This is the constitutional rule that is relevant to Kimmel’s firing. And it illustrates why this episode is such an affront to the First Amendment. Carr made it abundantly clear that ABC, along with local affiliates, would face adverse regulatory action if they did not pull Kimmel’s late-night show. Nexstar, which owns many of those affiliates, almost immediately yanked the show. And Nexstar is currently trying to acquire^[22] its rival—a move that would require FCC approval^[23].

No one at the company could miss the implication of Carr’s threat. If Nexstar did not punish Kimmel for his speech, the FCC chair would do things “the hard way.” That almost certainly meant heightened scrutiny, and perhaps rejection, of Nexstar’s pending acquisition. It could also mean revocation of Nexstar and ABC’s broadcast licenses. That is plainly how this FCC does business^[24]. Earlier this year, when Paramount sought the agency’s approval to combine with Skydance, the company handed Trump $16 million in a settlement and axed Stephen Colbert’s show. It was hard to see those moves as anything but a concession^[25] designed to secure^[26] the FCC’s approval of the deal. (Sure enough, the agency blessed^[27] the merger shortly thereafter.)

At a bare minimum, the facts of Kimmel’s cancellation lay out an eminently plausible infringement on the First Amendment. The companies that create and carry the show pulled it just hours after Carr threatened to pull^[33] their broadcast licenses. If anything, the censorship here is even clearer than it was in Vullo. And Murthy does not stand in the way of these companies, or Kimmel himself, bringing a free speech claim^[34] against the FCC—that is, if they are not too cowed by the prospect of even more punishment. Even this Supreme Court might affirm an injunction prohibiting retaliation against Kimmel’s commentary, a decision it could tout as principled consistency after Murthy and Vullo.

When the NRA faced alleged retaliation for its free speech by Democratic politicians, it was the American Civil Liberties Union that volunteered to defend its rights in court. The ACLU explained its decision to represent a pro-gun group by explaining: “President Trump has already promised to use the power of the government to go after his political adversaries. … The timing couldn’t be better for drawing a bright line that would help bind a future Trump administration and other government officials who misuse their power.” Liberal advocates at the nation’s premier civil liberties organization understand that government coercion of censorship is a threat no matter which party is behind it. It’s self-styled conservatives who’ve thrown that principle out the window the moment it’s their turn to censor.^[35]

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