Why Jimmy Kimmel’s First Amendment rights weren’t violated – but ABC’s would be protected if it stood up to the FCC and Trump

The assassination of conservative activist Charlie Kirk has sparked a wave of political commentary.

There were the respectful and sincere comments condemning the killing. Former President Barack Obama said, “What happened was a tragedy and … I mourn for him and his family.” And former Vice President Mike Pence said, “I’m heartsick about what happened to him.”

But Kirk’s killing also elicited what many saw as inappropriate comments. MSNBC terminated commentator Matthew Dowd after he said, “Hateful thoughts lead to hateful words, which then lead to hateful actions.” American Airlines grounded pilots accused of celebrating Kirk’s death.

Perhaps the most notable reaction to remarks seen as controversial about the Kirk killing hit ABC comedian Jimmy Kimmel. His network suspended him indefinitely after comments that he made about the alleged shooter in Kirk’s death.

Countless defenders of Kimmel quickly responded to his indefinite suspension as an attack on the First Amendment. MSNBC host Chris Hayes posted the following on X: “This is the most straightforward attack on free speech from state actors I’ve ever seen in my life and it’s not even close.”

But is it?

Free speech? It depends

The First Amendment limits government officials from infringing one’s right to free speech and expression.

For example, the government cannot force someone to recite the Pledge of Allegiance or salute the American flag, because the First Amendment, as one Supreme Court justice wrote, “includes both the right to speak freely and the right to refrain from speaking at all.”

And government cannot limit speech that it finds disagreeable while permitting other speech that it favors.

However, the First Amendment does not apply to private employers. With the exception of the 13th Amendment, which generally prohibits slavery, the Constitution applies only to government and those acting on its behalf.

So, as a general rule, employers are free to discipline employees for their speech – even the employees’ speech outside of the workplace. In this way, U.S. Sen. Lindsey Graham correctly said on X, “Free speech doesn’t prevent you from being fired if you’re stupid and have poor judgment.”

This is why Amy Cooper’s employer, an investment firm, was free to terminate her following her 2020 verbal dispute in New York’s Central Park with a bird-watcher over her unleashed dog. She called the police, falsely claiming that the bird-watcher, a Black man, was threatening her life. The incident, captured on video, went viral and Cooper was fired, with her employer saying, “We do not condone racism of any kind.”

This is also why ABC was able to fire Roseanne Barr from the revival of her show, “Roseanne,” after she posted a tweet about Valerie Jarrett, a Black woman who had been a top aide to President Obama, that many viewed as racist.

But as a scholar of constitutional law, I believe Kimmel’s situation is not as straightforward.

Threat complicates things

Neither Cooper’s employer nor Barr’s employer faced any government pressure to terminate them.

Kimmel’s indefinite suspension followed a vague threat from the chairman of the Federal Communications Commission, Brendan Carr. As complaints about Kimmel’s statement exploded in conservative media, Carr suggested in a podcast interview that Kimmel’s statements could lead to the FCC revoking ABC affiliate stations’ licenses.

“We can do this the easy way or the hard way,” Carr said.

But the Supreme Court has been crystal clear. Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.

In a 2024 case, National Rifle Association v. Vullo, a unanimous Supreme Court plainly said that the government’s threat of invoking legal sanctions and other coercion to suppress speech it doesn’t like violates the First Amendment. That principle is so profound and fundamental that it got support from every member of an often bitterly divided court.

A threat to revoke broadcast licenses would almost certainly be seen in a court of law as a government action tantamount to coercion. And Carr’s public comments undoubtedly connect that threat to Kimmel’s disfavored comments.

If the FCC had indeed moved to strip ABC affiliates of their licenses to broadcast because of what Kimmel said, ABC and its parent company, Disney, could have sued the FCC to block the license revocations on First Amendment grounds, citing the NRA v. Vullo case.

But the network seemingly caved to the coercive threat instead of fighting for Kimmel. This is why so many are decrying the Kimmel suspension as an attack on free speech and the First Amendment – even though they might not fully understand the law they’re citing.