The government isn’t supposed to pressure your employer to fire you or suspend you, based on your viewpoint. That’s true even if you say something stupid, like Jimmy Kimmel suggesting that the killer of Charlie Kirk was a conservative, as he did in recent remarks that led to his being pulled off the air.
“The MAGA Gang (is) 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 said on his late-night TV show. The killer wasn’t “one of them” or part of the MAGA gang — he was left-leaning and motivated by trans rights issues to kill Kirk, whom he viewed as hating transgender people.
In response to Kimmel’s comments, the Associated Press reports, a federal regulator took aim at ABC, the network that carried Kimmel’s show:
FCC Chairman Brendan Carr called Kimmel’s comments “truly sick” and said his agency has a strong case for holding Kimmel, ABC and network parent Walt Disney Co. accountable for spreading misinformation. He said the comic appeared to be making an intentional effort to mislead the public that Kirk’s assassin was a right-wing Trump supporter….
“This is a very, very serious issue right now for Disney,” Carr said on the Benny Johnson podcast. “We can do this the easy way or the hard way. These companies can find ways to take action on Kimmel or there is going to be additional work for the FCC ahead.”
Carr’s FCC has lots of power over ABC, because it rules on things that could cost a broadcaster millions of dollars, like who gets a broadcast license or whether to approve a merger or purchase of many TV stations, based on vague criteria like the “public interest” than can easily be used to retaliate against a disfavored network or broadcaster. So a broadcaster will restrict speech if it thinks it has to do that to appease the FCC.
“ABC suspended Jimmy Kimmel’s late-night show indefinitely beginning Wednesday,” after these “ominous comments from a top federal regulator.” The FCC’s pressure made the difference: People say stupid things on late-night TV, and broadcasting generally, all the time, without the FCC pressuring their network to fire them.
The Supreme Court was unwise to ever allow the FCC to regulate based on such vague and manipulable criteria as the “public interest,” which thankfully apply only to broadcasters, not newspapers or cable TV. Such vague criteria for handing out lucrative broadcast licenses make broadcasters very eager to appease FCC commissioners and indulge their whims. The “public interest” isn’t supposed to be a mask for persecuting people opposed to the administration while turning a blind eye to lies by people who support the administration (there are right-wing broadcasters who lie about things like vaccines and election fraud), but that appears to be what it is being used for now, just as it was under some past administrations.
Defenders of Kimmel’s being suspended emphasized that ABC is a private company not bound by the First Amendment. “Wait, is it the government that makes hiring/firing decisions at ABC?,” said one critic of Kimmel.
But that doesn’t mean that the government can force ABC to pull someone off the air because of what they said. Federal appeals courts have ruled that federal pressure on private employers to fire employees for their speech can violate the First Amendment rights of those employees, even though the First Amendment doesn’t bind a private employer. See Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990); Reuber v. U.S., 750 F.2d 1039 (D.C. Cir. 1985); Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005).
Similarly, the Supreme Court ruled in NRA v. Vullo (2024), that a state regulatory official couldn’t pressure entities not to do business with the NRA because she disagreed with its speech. (Although a federal appeals court later ruled that the official didn’t have to pay damages for violating the NRA’s free-speech rights, due to the doctrine of qualified immunity, which protects government officials against having to pay damages except for constitutional violations that were “clearly established” at the time they committed them).
But that doesn’t mean Kimmel can get any compensation from the federal government or federal officials for them violating his First Amendment rights. In a bad 2022 decision, the U.S. Supreme Court largely abolished the ability to sue federal officials for monetary compensation when they violate the Constitution. So federal officials can violate your constitutional rights and avoid paying any damages.
A statute provides for such compensation when state or local government officials violate your constitutional rights (42 U.S.C. 1983), but no similar statute exists to allow lawsuits against federal officials or agencies. So at most, you can only seek injunctive relief for most constitutional violations by federal officials (and then only when you still have standing to seek an injunction).
Could Kimmel instead sue ABC for acting in concert with the government to violate his free-speech rights? There is a division of authority on that among the federal appeals courts. Some courts would apparently let him sue a private entity like ABC for damages for colluding in a First Amendment violation. See Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005). Others would not. See Sutton v. Providence St. Joseph Medical Center (1999).
