When Jimmy Kimmel cracked a joke about Charlie Kirk’s murderer, he likely never imagined that this routine act of satirical commentary could lead to him being effectively silenced by private actors operating under the looming threat of the Federal Communications Commission (FCC). Yet, what followed was more than just a spat between a comedian and a regulator: it revealed how easily private actors (networks, advertisers, platforms) can become vehicles of government coercion. This piece explores how free speech is constrained not only by direct state action but also by the subtler interplay of state intimidation and private enforcement. By assessing the “Kimmel episode” and situating it in a global context of democratic backsliding, I argue in this two-part blog that public lawyers cannot afford to treat ‘private’ censorship as beyond our concern. This is Part 1 of 2.

Democratic backsliding, defined by Nancy Bermeo as ‘state-led debilitation or elimination of any of the political institutions that sustain an existing democracy’, has become a widespread global phenomenon. Backsliding is a particularly insidious strategy for dismantling democracy because it often involves systematic attacks on democratic institutions, processes, and mechanisms, which accumulate over time to produce enduring democratic erosion. The United States is one of the jurisdictions falling into this trend.

Democratic backsliders deploy a myriad of legal and institutional tactics to unbind the executive from institutional constraints and entrench themselves in power: this is what is often referred to as executive aggrandisement. Executive aggrandisement is achieved through the erosion of accountability mechanisms.

Accountability mechanisms can be classified in three broad categories: vertical (exercised by the people via elections), horizontal (which includes legislative and executive checks and balances, and a variety of elected and appointed institutions, including the political opposition, the judiciary, and fourth-branch institutions), and diagonal (the civic space and the media). In particular, the media, including political commentary and satire, serve as a key democratic safeguard: they expose abuses of power, amplify dissent, and create rallying points around which civil society can organize.

Backsliding strategies feed on each other, becoming most powerful when deployed in combination. An apt example is the relationship between institutional capture and selective enforcement. Institutional capture occurs when an institution is packed with loyalists, who then have strong incentives to apply legislation and exercise their decision-making powers in ways that favour incumbents while punishing the opposition and dissenters. When captured institutions wield regulatory and decision-making powers in a way that respects the letter of the law but violates its spirit to punish opponents, they produce what the International Institute for Democracy and Electoral Assistance refers to as selective enforcement.

Awareness of selective enforcement can, in turn, push private actors within the captured institution’s reach toward censorship and self-censorship. In short, institutional co-optation and selective enforcement are engineered malfunctions of the horizontal accountability branch, with disastrous consequences for the media as a vital pillar of diagonal accountability. Disney’s suspension of Jimmy Kimmel Live! after FCC Chairman Carr’s threatening remarks is an apt illustration of this phenomenon.

To understand the Kimmel case, it is essential to understand the relevant legal framework and the idiosyncrasies of the U.S. media sector. The FCC is an independent U.S. federal government agency with regulatory, enforcement, and investigative powers and (limited) public interest oversight over the content of programming. It has the broadest authority over broadcast radio and over-the-air TV.

FCC powers include the regulation and granting of broadcast licenses. The FCC has the capacity to deny (or sit indefinitely on the decision on granting) new licenses. New licenses are required for mergers and acquisitions. Article 326 of the Communications Act of 1934 forbids the FCC from censoring or in other way infringing on the broadcaster’s free speech. Pursuant to these legal mandates, the FCC has long held that the public interest is best served by permitting free expression of views.

The US media landscape is volatile, and companies are incentivised to grow via mergers and acquisitions to survive and thrive in a highly competitive market. The FCC’s refusal to grant a license, or its decision to delay indefinitely, can have devastating financial consequences for parent companies and media networks. Maintaining good relations with the FCC is straightforward when the agency acts as an independent regulator; however, the situation changes dramatically when the President packs it with zealous loyalists.

The FCC is directed by five commissioners appointed by the President and confirmed by the Senate for five-year terms. On June 28th, 2025, Brendan Carr, a well-known Trump loyalist and author for the FCC chapter on ‘Project 2025’, was appointed as Chair of the FCC. At the time of this blog’s publication, the agency has two republican commissioners, including Carr as Chair, and one democrat commissioner. The sitting commissioners constitute the current quorum, with Republicans holding a 2–1 majority.

From the get-go, Carr’s partisan leadership has faced strong bipartisan condemnation by former FCC commissioners. This partisan transformation of the FCC became glaringly evident to the general public when he directly targeted Jimmy Kimmel, and networks quickly folded under the weight of his threats. To understand why this matter is of utmost public law relevance, we must look at how the backsliding tactic of selective enforcement can serve as a powerful tool for self-censorship, which I explore in Part 2 of this blog.

LINK TO PART II HERE