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 2 of 2.

When Kimmel’s comments linking a recent shooter to the MAGA movement drew FCC Chairman Carr’s ire, the backlash was swift. Chairman Carr called them ‘offensive and insensitive’ on the Benny Johnson podcast and warned networks that they could handle the situation ‘the easy way or the hard way,’ and stated that companies could either ‘change conduct and take action on Kimmel (…) or there is going to be additional work for the FCC ahead.’ Under this pressure, NexStar Media Group — which is seeking FCC approval to acquire major competitor Tegna — pulled Kimmel from its stations. This prompted ABC (owned by Disney, which is trying to acquire NFL Network and other key NFL assets) to suspend the show temporarily. Sinclair Broadcast Group followed suit, explicitly citing Carr’s remarks as the reason for their decision.

The FCC’s policy on Broadcast News Distortion typically only applies in cases of ‘mere inaccuracy and errors stemming from mistakes,’ setting a very high bar for enforcement. Under this standard, it would be extremely difficult for Carr to target stations airing Kimmel. However, the mere threat of an investigation or a delay in reviewing a merger can be enough to pressure stations into compliance, encouraging them to curtail First Amendment rights of their talent, even in the absence of any formal action. While it is true that late-night shows seem to be declining in popularity, the timing of Kimmel’s suspension reveals a causal link between Carr’s threat and the company’s decision, demonstrating how threats of selective enforcement can act as a powerful tool for self-censorship.

Does U.S. law provide any legal recourse for these situations? ABC, as a private company, could technically suspend or fire Kimmel for many reasons. The critical legal question arises when a government official uses their position to coerce a private party into punishing or suppressing disfavoured speech. This concept is known as ‘jawboning’, defined as the use of official speech to inappropriately compel private actors, or as informal government pressure that indirectly induces self-censorship. Simply put, the government cannot accomplish indirectly what it is forbidden from doing directly, a principle established in Bantam Books v. Sullivan (1963).

This principle was reaffirmed in the 2024 Supreme Court case National Rifle Association of America v. Maria T. Vullo, which clarified that a government official cannot coerce a private party to punish disfavoured speech on their behalf. The Court laid out a multi-factor test to assess coercion, including the official’s regulatory authority; the content, tone, and purpose of their communications; and whether the communications could reasonably be understood as a threat or inducement.

In Kimmel’s case, Carr’s explicitly threatening comments carry real weight because he oversees broadcast licenses and merger approvals. While his statements could be seen as coercive, significant obstacles remain: Kimmel himself likely lacks standing, the networks (NexStar, Sinclair, ABC) have not pursued litigation, and any remedy would require imposing speech obligations on private companies, which courts are hesitant to enforce. However, even if standing and remedial issues could be overcome, the situation may worsen in the future, since the administration has been so clear in its intention to curtail speech that, in the future, no specific declaration may be necessary for networks to self-censor.

This is aptly illustrated by the case Murthy v. Missouri (2024), which highlights the difficulty of proving ‘state action’ in the absence of clear and unmistakable threats. In this sense, the Kimmel case accurately illustrates the dangers of selective enforcement and informal government pressure, demonstrating how First Amendment protections, and the broader role they play in ensuring accountability within a democracy, can be undermined even without direct governmental action.

We will never know what could have happened in a court setting. After all, Disney backtracked in its decision to suspend Kimmel after persistent backlash from civil society and multiple voices within the media sector. However, Sinclair Broadcast Group, the largest owner of ABC stations in the U.S., has declared it still would not air the show on its 38 ABC affiliate stations, and NexStar has not indicated any plans to resume airing Jimmy Kimmel Live! on its ABC-affiliated stations.

Even after this win for diagonal accountability, we should not get too comfortable. This is neither the first nor the last time that coercive selective enforcement has pushed U.S. media companies to self-censor. Consider the strikingly similar case involving CBS and Stephen Colbert, and let’s not forget FCC Chairman Carr’s post-Kimmel warning: ‘we are not done yet’.

Democratic backsliding and its many faces have effectively constricted and coopted media landscapes and civic spaces around the globe, from Venezuela to Hungary. It would be a mistake to think that private actors curtailing free speech and press freedom are outside the purview of public law. The Kimmel episode reminds us that when governments rely on broad threats rather than formal legal action, they can bend private institutions into vehicles of executive power, and that makes their actions every bit as much a public law concern.

LINK TO PART I HERE