Wait! That's What Got Jimmy Kimmel Canceled? ABC Does it the Easy Way
ABC has "pre-empted indefinitely" late-night show Jimmy Kimmel Live! in response to network affiliate and official backlash against host Jimmy Kimmel's statements about the murder of Charlie Kirk. Because I do not regularly watch the show, when I first learned this news yesterday, I assumed that Kimmel must have said something that could be misconstrued as celebrating or approving the murder--something similar to what some random people on social media have posted, something at best insensitive and at worst offensive. I did not imagine that Kimmel had actually celebrated or approved the murder because Kimmel is not, to my knowledge, a psychopath or a revolutionary. I then watched the offending clip from Monday night's show and was astonished to learn that Kimmel's sin appears to have been that he made one statement that was based on a factually erroneous assumption.
Here's the relevant statement: "We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it." Kimmel then notes that the White House flew the flag at half-staff, "which got some criticism." He goes on to show a clip of Donald Trump being asked how he's holding up in the wake of Kirk's murder: Trump answers that he's doing well and then brags about construction of a new White House ballroom. Kimmel follows up by joking that Trump has entered "the fourth stage of grief: construction." He adds that "this is not how an adult grieves the murder of someone he called a friend. This is how a four-year-old mourns a goldfish."
That's it. At no point in the monologue does Kimmel in any way approve of Kirk's murder or even express disagreement with any of the views Kirk espoused. Before ridiculing Trump, Kimmel gets one thing wrong. At a point when Tyler Robinson's motivations were still unclear to the general public, Kimmel criticized "the MAGA gang" for jumping to the conclusion that Robinson's rage at Kirk came from the left, when there was some evidence to suggest that Robinson was a "Groyper" who disdained Kirk for not being sufficiently far right.
However, that evidence was thin, and information subsequently released by Utah authorities indicates that Robinson had drifted left in the last year. It thus appears that the MAGA crowd was correct. Kimmel was right that many on the right jumped to conclusions about Robinson's motives prematurely, but so did he, and they turned about to be correct, while he was wrong.
That's not great but it's certainly not offensive or defamatory. Kimmel did not single out any individual for criticism--other than Trump, and he did not criticize Trump for jumping to a conclusion; he observed that Trump's reaction to Kirk's murder bespoke immaturity (and, I would add, egomania).
FCC Chair Brendan Carr was thus way off base when he described Kimmel's statements about the reaction to Kirk's murder as "some of the sickest conduct possible." Carr then made clear he was not merely criticizing Kimmel but threatening ABC. He said that "they have a license, granted by us at the FCC, and that comes with an obligation to operate in the public interest." He added: "We can do this the easy way or the hard way."
As a technical aside, I'll note that ABC does not have a license from the FCC. Its corporate-owned and affiliated local stations have broadcast licenses. One would expect the Chair of the FCC to know what entities it licenses. I suppose it's possible that Carr meant the local stations when he said "they," but then again he said "a license," singular. In context, and here's the full interview with YouTuber Benny Johnson, Carr appears to be threatening to strip the national ABC of an FCC license it doesn't actually have.
That legal nicety ended up not mattering, however, because almost immediately, two owners of ABC affiliates--Sinclair and Nexstar--announced that they would no longer carry Jimmy Kimmel Live! on the 70 local stations they collectively own. While Sinclair has a long history of slanting its programming to the right, Nexstar may have made that decision to curry favor with the Trump administration so that the FCC does not block its $6 billion acquisition of rival Tegna. If so, that would be a repeat of the appeasement playbook that Paramount executed to ensure regulatory approval of its sale to Skydance.
The threat of regulatory disapproval of corporate acquisitions as a means of coercing media companies to fire comedians and others who criticize Trump or his allies is alarming, of course, but here I want to focus on Carr's separate threat to revoke broadcast licenses for (presumably, the local affiliates of) networks that employ such critical voices. Is there any possible legal justification for what Carr was threatening (and what he and Trump continue to threaten)?
Carr's core complaint seems to be that it's not in the public interest for FCC license holders to provide politically slanted programming. He has complained that late-night comedians for networks that distribute their shows through FCC-licensed local stations "went from being court jesters that would make fun of everybody in power to being court clerics and enforcing a very narrow political ideology.”
That's a strange analogy. What distinguished royal jesters from everyone else was that they, uniquely, were permitted to ridicule the king. Given that Trump is the president--and aspires to be an absolute monarch--it is to be expected that contemporary jesters would train their criticisms on him in particular. Moreover, it is hardly true that late-night comics gave President Biden a pass. For example, here's a story collecting the universal mockery of Biden's performance in his debate with Trump last year.
In his inimitable fashion, Trump said yesterday that he "read somewhere" that the broadcast networks are "97 percent against" him and that this attitude might justify yanking their licenses (by which Trump would have meant the local stations' licenses if he understood anything about the law he has sworn to faithfully execute). Putting aside that undoubtedly made-up statistic, I'll concede that Carr is probably right that, all things considered, late-night comedy hosts give Trump a harder time than they have given any other president. One might think that's because no other president in the history of television, indeed, in the history of the republic, has been nearly the cornucopia of corruption, vanity, mendacity, and all-purpose awfulness that Trump is, but even assuming that there is a liberal bias among late-night comedians, why is that a concern of the FCC?
Carr's apparent answer is that by statute, broadcast licensees hold their licenses based on their ability to serve "the public interest." Presumably, he also thinks that it is not in the public interest for any network--or even any single show on any network--to have a distinctive political orientation. However, since the Reagan administration did away with the FCC policy known as the fairness doctrine, the FCC has not understood its mandate to include policing individual stations to ensure that each of them provides a heterodox mix of viewpoints. Reagan's decision to end the fairness doctrine was somewhat controversial in its pre-internet time but it is surely right for today, when anyone who wants to read, watch, or hear any particular mix of ideological views can find what they want in a sea of content.
Indeed, given all of the alternatives to broadcast media, many commentators--principally on the political right--have long argued that the 1969 Supreme Court decision upholding the fairness doctrine against First Amendment challenge should be overruled as obsolete. That decision relied on the following syllogism: government regulation of broadcasting is needed to avoid the cacophony that would result if anyone could broadcast on any frequency; licenses are thus a privilege granted by the public to utilize a scarce resource; government may therefore condition licenses on serving the public interest, which includes ensuring a diversity of viewpoints. Whatever the merits of that argument in 1969, the so-called scarcity rationale is laughable today. In seeking to revive the fairness doctrine, Carr is thus arguing for a major policy shift at the FCC, one that is wholly unjustified as a practical matter and may well be unconstitutional under current conditions.
Suppose, nonetheless, that the Carr-led FCC were to revive the fairness doctrine--either via formal regulation or through enforcement actions against licensees. Suppose further that the Supreme Court were to stick with its precedents upholding the fairness doctrine. Is there any reason to believe that the FCC under the Trump administration would apply it--for lack of a better word--fairly? If you think so, I'd be happy to help you apply for mortgages listing multiple principal residences.
In any event, there is every reason to worry that Carr does not need to resurrect the fairness doctrine in any official way. By continuing to threaten license revocation and other regulatory action against media organizations that platform Trump-critical material, Carr and Trump are able to control the media as effectively as or more effectively than they could through direct regulation. ABC's capitulation on Kimmel is the latest instance of corporate media obeying in advance. It almost surely won't be the last.
--Michael C. Dorf