Recent comments from television comedian Jimmy Kimmel and his show’s suspension on ABC have brought attention to a First Amendment debate about freedom of speech on broadcast television stations.
Kimmel’s remarks earlier this week on Jimmy Kimmel Live! about the person accused of killing activist Charlie Kirk quickly set off a chain of events that led to his indefinite suspension from ABC.
In a podcast, Federal Communication Commission (FCC) chair Brendan Carr criticized Kimmel and said the FCC could act against ABC, which is owned by Walt Disney Company. Then Nexstar, a broadcast group that owns 32 stations affiliated with ABC, said it would pre-empt Kimmel’s show on those stations. Soon after, Sinclair Broadcasting, another television group, followed Nexstar’s lead. Then, Disney announced the Kimmel show’s indefinite suspension.
Those moves led to questions from Kimmel’s supporters and others about the actions taken against Kimmel as representing government media censorship and a violation of First Amendment rights. Others support the moves by Disney, ABC, and its affiliate partners, and the comments from the FCC on ensuring broadcast stations meet their public interest obligations.
Free Speech Protections for the Broadcast Media
The Constitution’s First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In the National Constitution Center’s Interactive Constitution, scholars Geoffrey R. Stone and Eugene Volokh explain how the amendment’s free speech language is commonly understood. The First Amendment restrains only the government from infringing on free speech rights. Stone and Volokh point out that the Supreme Court has accepted that those restraints apply to all government agencies and officials.
For example, in Pittsburgh Press Co. v. Human Rel. Comm'n (1973), Justice Potter Stewart posed the question that “whether any government agency—local, state, or federal—can tell a newspaper in advance what it can print and what it cannot. Under the First and Fourteenth Amendments, I think no government agency in this Nation has any such power.”
The Constitution Annotated from the Library of Congress also writes that the Free Speech Clause “applies not only to outright bans or restrictions on speech but also to financial or other regulatory burdens on speech,” citing Simon & Schuster v. Members of N.Y. State Crime Victims Board (1991).
“The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment,” Stone and Volokh note. “Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions.”
However, free speech rights are not absolute, and the First Amendment does not regulate private individuals, organizations, employers, colleges, or landowners who place restrictions on speech. Other types of unprotected speech include defamation, true threats, “Fighting words,” child pornography, and commercial advertising.
Another type of speech, “hate speech,” is protected by the First Amendment even if it includes offensive language. In Matal v. Tam (2017), Justice Samuel Alito wrote that “speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
The FCC and Free Speech
The Federal Communications Commission is an executive branch agency that regulates over-the-air broadcast television, radio stations, and other platforms. In its published guidelines, the FCC says that Section 326 of the Communications Act of 1934 greatly restricts its ability to limit free speech on terrestrial stations. The act says that “no regulation or condition shall be promulgated or fixed by the [Commission] which shall interfere with the right of free speech by means of [over-the-air] broadcast communication.” The FCC can regulate some types of speech, such as indecency, obscenity, sponsorship identification, conduct of on-air contests, and hoaxes.
The FCC also has the ability to investigate cases of “broadcast news distortion” based on viewer complaints. Its published policy says that FCC’s ability to rule against a broadcaster is narrow, and the incident “must involve a significant event and not merely a minor or incidental aspect of the news report” and there must be “a crucial distinction between deliberate distortion and mere inaccuracy or difference of opinion.” The FCC also notes that a broadcaster’s First Amendment rights “include, but are not limited to, a broadcaster’s selection and presentation of news or commentary.”
FCC Commissioner Carr in an interview with CNBC pointed to the agency’s Broadcast News Distortion policy as an option to address Kimmel’s statement. “It was appearing to directly mislead the American public about a significant fact that probably one of the most significant political events we’ve had in a long time, for the most significant political assassination we’ve seen in a long time,” he told the cable TV station, which is not regulated by the FCC.
Carr also told Fox News that the FCC may seek to enforce public interest obligations for over-the-air broadcasters. The FCC has noted that the Communications Act “directs us to base our broadcast licensing decisions on whether those actions will serve the public interest, convenience, and necessity.” Its broadcast journalism policy also states that “rigging or slanting the news is a most heinous act against the public interest.”
Another option cited by Carr in a podcast interview was that the FCC could monitor certain talk shows for compliance with the commission’s equal-time rule if they promote political candidates. The FCC’s equal time policy requires “if any licensee shall permit any such candidate to use its facilities, it shall afford equal opportunities to all other candidates for that office to use such facilities.” Carr questioned if a current talk show met the rule’s bona fide newscast exception.
For now, many questions remain about whether Kimmel will be reinstated, and if not, what happens legally, especially if the FCC acts on other broadcasters it deems as not meeting its policies. A potential scenario is that a broadcaster which the FCC finds not compliant with its policies could contest such a finding on First Amendment grounds, while the FCC argues it is acting on powers granted to it by Congress.
Scott Bomboy is the editor in chief of the National Constitution Center.
