Daniel Browning
ABC Pulls Kimmel Off the Air
On Wednesday, September 17th, 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.