Trump’s Attack on ABC Is Illegal. It Might Not Matter

The chain of events that led to ABC’s suspension of Jimmy Kimmel Live! unfolded unusually fast. It started with a thinly-veiled threat from Federal Communications Chair Brendan Carr that his agency might take action against the network over accusations that the late night host mischaracterized the politics of the man who allegedly killed Charlie Kirk.

“We can do this the easy way or the hard way,” he said to right-wing podcaster Benny Johnson. “These companies can find ways to change conduct, on Kimmel, or there’s going to be additional work for the FCC ahead.”

Within five hours, Nextstar, an owner of ABC affiliate stations around the country, said that it would pre-empt the show “for the foreseeable future.” Minutes later, ABC pulled it indefinitely.

Since the start of his second term, President Trump has used every lever of government to fight back against what he considers conservative bias in mainstream media and adversarial coverage. By dangling carrots of selective regulatory enforcement and favorable regulation, he’s effectively been able to strongarm networks, which disguise the could-be censorship as private business decisions. Consider Skydance’s acquisition of Paramount, with CEO David Ellison intending to make major changes at CBS News, possibly by bringing on The Free Press founder Bari Weiss in a leading role at the network.

Kimmel was “fired because of bad ratings more than anyone else,” Trump, who predicted the late night host’s firing in July, said at a press conference in London. Later, he suggested revoking the licenses of adversarial broadcast networks. “I would think maybe their licenses should be taken away,” he said. Carr also told CNBC earlier in the morning that “we’re not done yet,” hinting at further changes in media.

And like approval of Paramount’s sink-or-swim merger with Skydance, Kimmel’s suspensions shines a spotlight on the power that Trump wields over dealmaking and regulatory matters in decisions with the potential to transform the long term trajectory of a company. Media execs are on notice: Bob Iger allowed ABC News’ settlement of a defamation lawsuit from Trump; Jeff Bezos revamped The Washington Post‘s opinion section to bring it more in line with Rupert Murdoch’s Wall Street Journal; Los Angeles Times owner Patrick Soon-Shiong shifted the paper’s strategy to increasingly platform conservative views.

Here, Carr knew the affiliate networks had leverage. Nextstar reaches 220 millions viewers in the country, and it appears the company drew a hard line over Kimmel’s remarks. The FCC didn’t formally have to do anything.

“The threat is real,” says Floyd Abrams, a leading First Amendment lawyer who’s argued more than a dozen free speech cases before the Supreme Court.

To Erwin Chemerinsky, dean of U.C. Berkeley School of Law, lines were clearly crossed. “The government, including the FCC, never can impose sanctions for the views expressed,” he says. “But that is exactly what Carr threatened and ABC capitulated.”

Important to note: Nextstar is seeking regulatory approval for its $6.2 billion megamerger with Tegna that, if greenlit, would make it by far the largest owner of local TV stations in the country. But first, the FCC has to raise the 40 percent ownership cap in order to advance the deal.

By pre-empting Jimmy Kimmel Live!, Nextstar was able to curry favor with Carr. The company “stood up and said, ‘Look, we have the license, and we don’t want to run this anymore. We don’t think it serves the interests of our community,’” he said during a Wednesday segment on FOX News’ Hannity. “I’m very glad to see that America’s broadcasters are standing up to serve the interests of their community.”

Yes, Carr’s threat likely violates the First Amendment, legal scholars say, but that only matters if Disney is willing to go to court. The entertainment giant had clear incentives to fold. It has ambitions, perhaps ones that will require regulatory approval in the near future, outside of ABC. There’s the looming threat of government retaliation if it didn’t suspend Kimmel.

Recently, Disney has tried to avoid the partisan political fray. By its thinking, its brand is built on fairytales and fantasies, not taking positions on socially divisive topics, which have come with consequences (Conservatives go to Disney World too). Take the company, under pressure from its employees, criticizing a Florida education barring classroom discussion of sexual orientation and gender identity. State legislators, at the direction of Gov. Ron DeSantis, responded by assuming control of the special tax district that encompasses its 25,000-acre resort. A years-long, bitter feud with its most vital partner for its parks business that likely contributed to former chief executive Bob Chapek’s ouster and a dragging stock price, which culminated in a proxy fight with activist investor Nelson Peltz, followed.

If it does sue, which is very unlikely, Disney could lean on precedent created by an unlikely ally: The National Rifle Association. In a case before the Supreme Court last year, the justices unanimously found that the gun group’s First Amendment rights were violated when New York state officials coerced private companies into blacklisting it. The takeaway, Justice Sonia Sotomayor wrote, is that the constitution “prohibits government officials from wielding their power selectively to punish or suppress speech.”

There are obvious parallels, says Eugene Volokh, a professor at U.C.L.A. law school and influential conservative blogger. “It’s clear that the FCC used coercive pressure — the threat of investigation or cancelling the Nextstar, Tegna merger,” he says.

It’s true that Kimmel’s remarks about the political affiliation of Kirk’s shooter were incorrect. It matters to get things right. But Carr’s intervention thrusts the FCC — and government — into a miscast role as the arbiter of truth. There’s a right to speculate on current events, even if it later turns out to be wrong.

“We’ve never been in a situation like this,” Abrams says. “It’s a real body blow to free expression.”