Jawboning Late Night: A Lesson in How Corporate Consolidation Creates Free Speech Problems

Guest Blogger

Daniel Browning

ABC Pulls Kimmel Off the Air

On Wednesday, September 17^th, ABC announced its decision to pull “Jimmy Kimmel Live!” off the air indefinitely following Kimmel’s monologue about Charlie Kirk’s assassination.

Disney’s decision came shortly after FCC chairman Brendan Carr made the following thinly veiled threats against ABC. Carr also called on licensed broadcasters to “push back on” networks and “preempt” content that does not serve local communities. Sure enough, Nexstar, which owns many ABC affiliate stations, announced that it would “preempt ‘Jimmy Kimmel Live!’ for the foreseeable future.” ABC suspended Kimmel shortly thereafter.

Jawboning and the First Amendment

As other commentators have observed, Kimmel’s suspension appears to be a paradigm case of “jawboning”—where the government indirectly censors expression by pressuring some private intermediary to censor the expression directly.

Just last year, in N.R.A. v. Vullo, the Court reaffirmed that government jawboning can violate the First Amendment whenever it coerces a private intermediary to censor speech. In Vullo, a state official offered not to prosecute an insurance underwriter, Lloyd’s, for regulatory infractions in exchange for Lloyd’s’ agreement to sever ties with the N.R.A. The Court held that, by offering the inducement in order to punish the N.R.A.’s speech, Vullo had engaged in unconstitutional coercion.

After Vullo, the constitutionality of government exhortations for private intermediaries to interfere with a third-party’s speech turns on whether the government’s communication is persuasive (constitutional) or coercive (unconstitutional).

Why the Kimmel Case Raises Important First Amendment Issues

Other commentators have called for Kimmel to bring a First Amendment challenge against the government, on the theory that FCC Chair Carr’s threats against broadcasters were unconstitutionally coercive.

In some ways, this does seem to be an easy case. Carr makes vague comments that appear to threaten networks and broadcasters, and ABC suspended Kimmel shortly thereafter. Thus, Kimmel might have an easier time establishing standing than did the various plaintiffs in Murthy v. Missouri. The Court in Murthy held that the various plaintiffs lacked standing, in large part, because they could not show that government pressure caused their injuries. The social media platforms, Justice Barrett reasoned, “had independent incentives to moderate content.”

In other ways, though, the Kimmel case raises to the fore important complexities that the Court has not adequately addressed in its jawboning jurisprudence.

Doctrinally, the coercion/persuasion rule, as developed in Bantam Books and Vullo provides very little guidance to courts in adjudicating jawboning claims. Conceptually, there is a huge gap between government communications that could rightly be labeled “persuasive” and communications that could be called “coercive.”

Consider an example that arose in the Murthy litigation—President Biden’s comment that social media platforms were “killing people” by allowing users to spread misinformation. Persuasion or coercion? I, for one, couldn’t say. The problem here is that there are myriad forms of government pressure that are neither persuasive nor coercive—but are rather somewhere in between.

While Vullo settles the question in clear cases where government pressure can be easily identified as coercion or persuasion, it leaves courts without clear guidance in cases, perhaps like the one here, where government pressure occupies the space between coercion and persuasion.

The much larger, more systemic problem, however, is that the modern corporate law infrastructure makes jawboning both much more effective and much more difficult to challenge in court.

Because traditional media is increasingly owned by a small handful of firms, government jawboning is increasingly likely to prove effective, for two reasons.

First, the government can hold out a regulatory carrot (as relevant in the Kimmel case, approval of an acquisition) in exchange for “voluntarily” censoring expression. For corporate executives, the cost of censorship will be much cheaper than the cost of drawing the government’s ire, especially as the arms race to add subsidiaries creates more nodes at which the government can leverage its regulatory authority.

Second, the consolidation of smaller firms into large mega-firms (like Disney) decreases the cost to the government of targeting disfavored expression. The government only needs to pressure a small handful of firms rather than many.

The corporate landscape that makes jawboning more effective also makes it more challenging for speakers to bring successful First Amendment jawboning claims.

It can often make good business sense for highly consolidated and diversified firms to censor speech even irrespective of government pressure. For example, before deciding to suspend Kimmel, Disney CEO Robert Iger reportedly was hearing from advertisers who feared a conservative firestorm and from Disney employees who reported receiving threats. And because Disney owns an array of subsidiaries, Disney executives had to worry about a Kimmel-related boycott of their theme parks, cruises, merchandise, and other programming. These non-governmental pressures very well could’ve given Disney executives “independent incentives” to suspend Kimmel.

So What Can be Done?

Doctrinally, the  Court in jawboning cases should focus more on whether the government harbored an unconstitutional motive—whether the government intended to censor unfavorable expression—than on whether the government’s communication could be labeled coercive or persuasive. In the alternative, the Court should provide further guidance on how to determine whether the government’s communication with the private intermediary rises to the level of unconstitutional coercion.

More systemically, we should begin to think about corporate consolidation and oligopoly as a free speech problem. As firms become more consolidated and diversified, traditional media, which is crucial for public discourse, becomes more vulnerable to indirect government censorship.

A more durable solution than relying on courts to police government jawboning would involve, first, consumers increasing the costs to firms of capitulating to the government. This bottom-up solution, which would require citizen-consumers to mobilize to protect free speech values, has already proven somewhat effective in the boycott of Target over ending its DEI policies. Indeed, there is some evidence that consumers have already begun to penalize Disney for their capitulation.

Second, taking a more top-down approach, a future Democratic administration should charge the FCC and FTC with considering the free speech implications of corporate consolidation and diversification.

Daniel Browning is a JD Candidate at Yale Law School and a PhD Candidate at Princeton University.  You can reach him by e-mail at Daniel.browning@yale.edu.