When he called for action against late-night talk show host Jimmy Kimmel, did Federal Communications Commission (FCC) Chairman Brendan Carr go beyond the bounds of government control?
On his ABC program, Jimmy Kimmel Live, Kimmel sparked conservative opposition when he discussed the suspect in the assassination of conservative activist Charlie Kirk on September 10th.
Kimmel said in his monologue on September 15 that “we hit some new lows over the weekend with the MAGA gang trying to characterize this kid who killed Charlie Kirk as anything other than one of them.”
Additionally, he broadcast a clip of Trump’s quick response to a question about how he handled Kirk’s death. Trump appeared to be quickly switching places while discussing the White House ballroom. However, another omission about Kirk’s alleged shooter sparked the bigger controversy.
Carr made an appearance on conservative commentator Benny Johnson’s podcast hours before ABC, which is owned by the Walt Disney Co., said broadcasters are “entirely different than people that use other forms of communication.”
Carr told Johnson, “They have a license granted by us at the FCC that obligates them to operate in the public interest.” We can do this either naturally or naturally, I mean, look. These businesses can find a way to change how they conduct themselves in order to act on Kimmel, or the FCC will need to do more work in the interim.
Carr compared Kimmel’s statement to “news distortion,” which is against the FCC’s broadcaster policies.
The commissioner’s remarks were widely accepted to be those of ABC, Kimmel’s employer, and the network’s independent affiliates. Because ABC is a network that also owns stations, both independent stations and ABC fall under the control of the FCC.
Two businesses that own a number of ABC affiliates, Nexstar and Sinclair, announced they would be preempting Kimmel’s show before ABC made the announcement. Nexstar and Sinclair are asking the FCC to repeal a provision that prohibits any broadcasting company from reaching more than 39 percent of US households, while Nexstar and Sinclair are requesting FCC approval for a merger with Tegna.
Carr once more cited his agency’s public interest obligation in an interview after Kimmel’s show was pulled. Carr told Fox News’ Sean Hannity, “We at the FCC are going to enforce the public interest obligation.” If broadcasters don’t like it, they can ask the FCC for their license. However, that’s our job, and we’re making some progress right now.
Carr, according to publications and legal experts, has overstepped his authority by threatening to censor what ought to be free speech.
It’s no longer just a business decision when a network drops famous talent hours after the FCC chairman makes a flimsy threat. The Free Press, a right-of-center publication, wrote, “It’s government coercion.” Is it currently the Trump administration’s policy to punish comedy producers who don’t fit with its values? That constitutes censorship.
How much of a role can the FCC play in the Kimmel case given its statutory authority and First Amendment protections for free speech? According to first amendment experts, the FCC has the authority to impose certain rules on broadcasters’ actions, but it also extends that authority’s purview to persuade private media outlets to impose sanctions on comedians on public matters.
Carr’s actions were described as “a classic case of unconstitutional jawboning,” according to Ronnie London, general counsel for the Foundation for Individual Rights and Expression, which uses threatened government action to pursue policy objectives.
The justices unanimously decided that a New York regulator’s efforts to obstruct companies from doing business with the NRA constituted coercion and violated the First Amendment in a 2024 US Supreme Court decision, National Rifle Association v. Vullo.
PolitiFact contacted the FCC for comment, but the publication did not respond.
What is the FCC’s authority for public interest?
Carr acted on his own in the Kimmel case, without the FCC board’s five members formally intervening. On CNN, only one Democrat in the FCC, Anna Gomez, spoke out against Carr’s actions.
Carr’s words, according to London, were significant because the government agency he leads had an undercurrent of force.
Where does the agency’s authority start and end, then?
The FCC was authorized to grant broadcast licenses to broadcasters who adhered to the “public interest, convenience, and necessity” under the Communications Act of 1934.
According to Olivier Sylvain, a senior policy research fellow at Columbia University’s Knight First Amendment Institute and a professor at Fordham University, “essentially means that a licensee has the obligation to air programs that are responsive to its local community’s priorities and needs.”
Before ABC announced Kimmel’s departure, Nexstar had already preempted Kimmel’s show. (Preparing a show means not promoting it in an affiliate’s market.)
The FCC acknowledges on its website that the First Amendment restates its authority on speech, even in the interest of the general public.
According to the FCC, “the public interest is best served by allowing free expression of views,” the FCC has long held. Communications law and policy “seek to encourage responsive “counter-speech” from others rather than suppressing it.” Even though some viewpoints or expressions may be extremely offensive, following this principle allows for the most diverse and opposing opinions to be expressed.
What guidelines do broadcasters have for the public interest?
Local TV and radio stations’ over-the-air broadcasts are subject to speech restrictions in some areas, but cable or satellite TV programs are typically not. Online content is not subject to regulation by the FCC.
Broadcasters are subject to rules that the FCC has approved or that Congress has traditionally made decisions in formal or formal ways.
They include on-air contests, sponsorship identification, commercial content in children’s TV programming, and obscenity and indecency.
The public interest standard is “quite circumscribed” when it comes to content regulation, according to London. The FCC’s regulatory authority “is not a blank check, and unquestionably not when it comes to regulating content on broadcast TV.”
News distortion: what is it?
Carr cited another aspect of Kimmel’s violation: broadcast news distortion. However, Kimmel’s role as a late-night comedian and his words may make things more difficult.
According to the FCC’s website, “news distortion must involve a significant event.”
There is a distinction between “deliberate distortion” and “inaccuracies and disagreements of opinion.” According to the FCC, broadcasters are only subject to fines if it can be established that they purposefully distorted a factual news report. “Irregularities or errors that result from mistakes are not correctable.”
According to Carr, who hosts Johnson’s podcast, licensed stations that offer nationally distributed programs like Kimmel’s have a public interest standard that is relevant to FCC oversight.
Carr said, “One thing we’re trying to do is give those local stations the tools they need to support their own communities.” You can’t operate a narrow, partisan circus while still adhering to your public interest obligations, as a result. We have a rule in the book that defines the public interest standard as saying “news distortion is something that is prohibited,” meaning that you can’t engage in a pattern of news distortion.
Carr’s commentary disregards a few crucial elements of Kimmel’s show, according to legal experts.
ABC’s entertainment division, not its news division, is running out of “Jimmy Kimmel Live.”
Additionally, Kimmel’s intentional sharing of inaccurate information is difficult to refute. Some news outlets had covered the relationship between Tyler Robinson, the alleged shooter, and a roommate who was transitioning, but the charging documents had not yet been made public.
