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Brendan Carr isn’t subtle. “We can do this the easy way or the hard way,” he warned Disney and ABC broadcasters over comments made by comedian Jimmy Kimmel about Charlie Kirkʼs murder. The chairman of the Federal Communications Commission threatened ABC’s FCC licenses — the kiss of death for a broadcaster.
“These companies can find ways to take action on Kimmel or,” he threatened, ominously, “there’s going to be additional work for the FCC ahead.” Disney, ABC’s parent company, promptly suspended Kimmel “to avoid further inflaming a tense situation.” That is, to avoid further inflaming Carr and President Donald Trump.
Even Carr’s fellow Republicans were aghast. “Absolutely inappropriate” said Sen. Rand Paul (R-Ky.). Sen. Ted Cruz (R-Texas) went further: “It is unbelievably dangerous for government to … say[ ] we’re going to decide what speech we like and what we don’t, and we’re going to threaten to take you off air if we don’t like what you’re saying.” Cruz compared Carr to a “mafioso,” calling Carrʼs threats “right out of ‘Goodfellas.’”
Or “The Godfather.” Don Carr-leone made broadcasters “an offer [they] can’t refuse.” Fortunately, it’s still possible to refuse such demands — at least for multi-billion dollar companies. Disney reinstated Kimmel only after “having thoughtful conversations with Jimmy[.]” Yet to Cruz, the Don’s message was unmistakable: “‘nice bar you have here, it’d be a shame if something happened to it.”
Upon his return, Kimmel struck a muted tone on Kirk. He thanked Disney for reinstating him, but noted that “this puts them at risk” from an FCC “using mob tactics to suppress free speech.” Two large broadcast station groups refused to run his show, eliminating a quarter of his audience. They relented only after intense public backlash.
Make no mistake: critical speech has been, and will be, chilled. Disney bent, even if it didn’t break. Many comedians and journalists will self-censor, or their corporate employers will muzzle them. Such anticipatory obedience, warns Timothy Snyder, a leading scholar of authoritarianism, “teach[es] power what it can do.”
Carr’s threats work despite their unconstitutionality. “The FCC does not have a roving mandate to police speech in the name of the ‘public interest,’” acknowledged Carr in 2019. Now, Carr’s exploiting the chasm between the FCC’s apparentauthority over broadcasters and what the courts would eventually uphold if any licensee risked everything to fight in court.
Carr invokes the commission’s 1949 News Distortion Policy and its 1992 Broadcast Hoax Rule, but both require proof that a speaker knew their statement was false. Both rest on the 1934 Communications Act’s vague “public interest” standard; whatever that means, it can’t trump the First Amendment.
The government has no “power to restrict expression because of its message, its ideas, its subject matter, or its content,” the Supreme Court has said repeatedly, and even false speech is constitutionally protected. The court has “many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression — to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.”
Over seventy legal scholars, free speech groups and other experts agree: Carr’s claims have no legal merit; they violate both the First Amendment and the Constitution’s guarantees of due process. Our letter provides more details. But the bottom line is, as Carr himself once said: a “newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them.”
Of course, Carr claims this time is different. Disney’s decision to suspend Kimmel, he insists, merely reflected viewer preferences: “We are in the midst of a massive shift in dynamics in the media ecosystem for lots of reasons, again, including the permission structure that President Trump’s election has provided.” He has no business telling publishers what their viewers really want, let alone trying to shape the “permission structure” in which media companies make editorial judgments. The Supreme Court has said the First Amendment demands that government “leave such judgments to speakers and their audiences.”
In other words — to quote Donnie Brasco — “fuggedaboutit!”
Berin Szóka is president of TechFreedom, a nonpartisan think tank dedicated to Internet law and policy. He has practiced telecommunications, Internet and free speech law for two decades.
