Jimmy Kimmel II: The President and the FCC Go Rogue

The President’s inappropriate, unprecedented, and often unconstitutional attacks on the media are legion: from slandering women reporters to his big lies of “Fake News” and “Enemy of the People”; from his Administration’s putting severe restrictions on reporters’ access to the Pentagon to its extracting unmerited settlements from major networks by leveraging the government’s power over corporate mergers; from his petty punishment of the AP for not kowtowing to his bizarre renaming the so-called Gulf of America to his frivolous libel suits against major newspapers. But none is as crazy — pardon that legal nomenclature — or as patently unconstitutional as last month’s FCC investigation of ABC over a mediocre joke by late-night host Jimmy Kimmel about the President’s wife.

We have heard plenty about how Trump is leading us away from democracy and toward authoritarianism, and how he has followed in the footsteps of Hungary’s now-defeated Viktor Orbán. But if, in a country whose first amendment guarantees freedom of speech and press from government interference, the government can threaten and punish television stations for airing a perhaps insensitive joke about our leaders, then we are not acting like the leaders of the free world we have been for most of the past century, but like a third-world banana republic or worse.

Since I assume most readers are familiar with the facts, only a very brief recapitulation: A few days before the White House Correspondents’ Association dinner, Kimmel wisecracked that Melania had the glow of an “expectant widow.” Kimmel later explained that it was a light joke about the couple’s respective ages, a gap of 23 years. The Trumps, however, sought punishment for Kimmel’s daring to joke about them. The very next day, Trump’s FCC Chairman Brendan Carr launched an investigation into all station licenses owned by ABC — licenses that were not up for review until at least 2028.

To make matters worse, the FCC wouldn’t even concede that its move was prompted by the White House’s displeasure over an insensitive punch line. It said it was reviewing Disney’s (ABC’s owner) DEI policies and whether they violated any discrimination laws. In a normal world, that obvious fib would be the subject of headlines and opprobrium. But given a White House that lies on a daily basis, this bizarre non-explanation was hardly dwelled upon.

The Trumps also tried to link the joke to the assassination attempt at the dinner. But two days before the dinner, a depraved gunman was on nobody’s mind, and, as Kimmel later said on his show, the line had nothing to do with violence or assassination. Maybe some Congressman will now vote, in light of the assassination attempt, to spend a few hundred million dollars more to build a more secure East Ballroom for the President, but no one seriously believes that the purported joke referred to a future assassination attempt.

To underscore how unusual this is, the last time the FCC revoked a broadcast license over a station’s content was more than half a century ago, in 1969, when a Mississippi station lost its license for defending segregation on the air. So, 57 years later, to open an investigation and burden ABC with massive costs in time, money, and hassle over one weak joke on late-night television is nothing other than pure retribution for a line the President did not like.

As the FCC’s lone Democrat, Anna Gomez — our talented speaker at last fall’s Virginia Conference — said: “This is unprecedented, unlawful and going nowhere. It is a political stunt which won’t stick. Companies should challenge it head-on. The First Amendment is on their side.”

There is no serious threat that ABC will lose any such case. But, as with so many moves by this Administration, including its attacks on big law firms — oral argument on the Executive Orders against the four firms fighting them was held last week and, by all accounts, the orders are likely to be found unconstitutional in whole or large part — this is not really about the Administration’s winning. It is about getting the media to “kiss the ring,” to bend their coverage in a direction more favorable to the White House, and to threaten them with huge legal costs, unfounded litigation, and possible disapproval of deals and licenses if they do not comply. In short, these are SLAPP cases, pure and simple. This is not how the First Amendment is supposed to work.

An unlikely ally weighed in. Sen. Ted Cruz noted during the first Jimmy Kimmel controversy a few months ago, when government pressure resulted in Kimmel’s suspension, that Democrats could return the favor against conservatives when they regained power. Now he was even more directly on constitutional point: “It’s not the government’s job to censor speech, and I do not believe the FCC should operate as the speech police.” As Cruz chairs the Senate committee overseeing the FCC, his words may carry some weight going forward.

And kudos to ABC. Litigation not having begun in Kimmel round two, the network filed a response to the FCC’s investigation in another case, one challenging the propensity of The View to feature more Democratic candidates than Republican ones. ABC’s lawyer is Paul Clement, the highly respected Supreme Court litigator and former Solicitor General in the George W. Bush Administration. Indeed, once upon a time, keeping the government out of the censorship business was a Republican issue. As Mark Fowler, FCC Chairman under Ronald Reagan, explained in the mid-1980s: “There’s no room in our society, which is founded on freedom of speech and the press under the First Amendment, to tolerate the FCC acting as a censor over what is broadcast over radio and television stations.”

The ABC filing makes several arguments. Specifically addressing The View and late-night shows, it points to precedents applying the news exception to the equal time rule to such programs. It also argues that the Commission appears to be applying its rules selectively, since there have been no investigations of radio talk shows favoring conservative candidates. More broadly, ABC contends that the investigation itself is unconstitutional, much as President Reagan said the Fairness Doctrine was because it was “antagonistic to the freedom of expression guaranteed by the First Amendment.”

The original basis for such governmental regulation was the scarcity of airwaves, which it fell to the Commission to allot. But ABC emphasized that cable television and the internet have changed all that, and that today, with “information ubiquity,” there is hardly a scarcity of platforms for political opinion. As President Reagan said back then: “In any other medium besides broadcasting, such federal policing of the editorial judgment of journalists would be unthinkable.”

What can the rest of us do about this utterly inappropriate and meritless exercise of retributive executive power? One answer is obvious: support ABC with amicus briefs and other forms of legal support. But recall that in Kimmel round one, involving an opaque line in the aftermath of the Charlie Kirk assassination, Kimmel’s suspension on many local stations was cut short by public opinion — by viewers complaining to local stations, ABC, and Disney that they wanted to see Kimmel back on the air.

I firmly believe that most people in this country, even diehard MAGA supporters, do not believe the President should have power over who their late-night entertainers are, or that he can get a television host fired over one joke he did not like, even about him or his family. So talk up the issue and urge people to take action, whether by writing to Brendan Carr or otherwise. Remember, as Carr himself said, we can do this the easy way or the hard way.

George Freeman is MLRC’s executive director. All opinions are his and not those of the organization. Responses welcome – email gfreeman@medialaw.org.