September 20, 2025 • 11 mins
Late-show host Jimmy Kimmel's been meeting with top Disney executives since he was pulled off air earlier this week.
ABC put his talk show on hold indefinitely after he made controversial comments about the Charlie Kirk killing.
US associate law professor Jacob Schriner-Briggs says there's a strong case for Kimmel to sue.
"Typically, the First Amendment only applies to Government actors, which is to say that private entities cannot typically violate a person's freedom of speech, but the Supreme Court has been clear in interpreting the First Amendment that the Government cannot force private intermediaries to do its censorship work for it."
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:06):
You're listening to the Sunday Session podcast with Francesca Rudkin
from News talksb SO.
Speaker 2 (00:13):
Over the last twenty four hours or so, we have
seen Republicans and right wing conservatives speak out against the
suspension of late night talk hosts. Jimmy Kimmel, Ted Cruz,
Tucker Carlson, and Ben Shapiro have expressed concerns around the
President's set, with Republican Cruz comparing FCC Chairman Brendan Carr's
actions to that of a mob boss. To discuss the
legal aspects of all this, I'm joined by assistant law
(00:35):
Professor Jacob China Briggs. Jacob's work focuses on First Amendment
freedoms of speech and the press. Jacob, thank you so
much for being with us. This is about more than
what Jimmy Kimmel said about the killing of Charlie Kirk
and the implications around the suspected gunman. It seems a
lot more complicated than just that. So can you explain
the role the chairman of the Federation of Communications Commission
(00:58):
had in all this?
Speaker 3 (01:00):
Sure? Sure? So. Starting with the FCC chair shortly after
the remarks that Jimmy Kimmel made, which we could talk
about those remarks specifically. I think it's important to be
precise about what he actually said. But after that monologue,
the chair of the FCC made public statements which suggested
(01:23):
that if ABC did not act to discipline Kimmel, the
FCC would have, you know, something to the effect of
some work ahead of it. And if you listen to
the interview in context, that's a thinly veiled threat. I
think it's easy to read it that way, that the
FCC might act to, for instance, revoke the broadcast license
of local ABC affiliates using public airwaves. At one point,
(01:45):
he says, we can do this the easy way or
the hard way, which is just, you know, so on
the nose as to be a cliche. But I think
it's it's easy to read those statements as you know,
threatening forthcoming action regulatory action against regulated entities like ABC
if it did not take action in response to a
speech that Jimmy Kimmel made that the administration.
Speaker 2 (02:08):
Did not like can he make streets like that?
Speaker 3 (02:12):
So he can in a literal sense, I think it
raises some serious First Amendment concerns. So the First Amendment
to the US Constitution guarantees the freedom of speech, and
typically the First Amendment only applies to government actors, which
is to say that private entities cannot typically violate a
person's freedom of speech. But the Supreme Court has been
(02:34):
clear in interpreting the First Amendment that the government cannot
force private intermediaries to do its censorship work for it.
That also violates the First Amendment. And I think this
case is fairly exemplary of that principle. So even if
it's ABC rather than the federal government that's taking Jimmy
(02:56):
Kimmel off the air, if Jimmy Kimmel could prove that
ABC only did that in response to the government's coercion,
then there would be a big First Amendment problem there.
Speaker 2 (03:06):
Okay, so he could Kimmel could sue.
Speaker 3 (03:09):
Uh, you know, it's that's a complicated question for a
bunch of procedural reasons. But I think, you know, the
way I would think about it is if he could,
as a procedural matter, get into court, then you know
what lawyers refer to as the merits of the case,
the actual First Amendment issues. I think it looks like
he has a fairly strong First Amendment claim here. But
(03:30):
you know, predicting legal outcomes is always more art than science,
and I don't want to pretend to have a sort
of foresight that I don't, But just looking at the
face of these facts, yes, I think there would be
a colorable First Amendment claim.
Speaker 2 (03:43):
Here, Jacob, Are you aware at all of the if
CC chairman or an i FCC chairman in the past,
you know, making comments like.
Speaker 3 (03:51):
This, not in recent memory, And I think you know
that's that's part for the course of this administration acting
distinctly from you know, recent previous administrations. It's not as
if the United States doesn't have episodes of serious censorship
in its history. It certainly does, but I think in
recent memory, these ongoing events are stark in their distinctiveness. Now,
(04:15):
I will say, generally speaking, the FCC does have power
over the licenses of local broadcast affiliates. That comes from
a nineteen thirty four law that was passed by the
US Congress called the Communications Act. But generally speaking, using
the authority over broadcast licenses as a form of coercion
to threaten broadcast affiliates, that's not something that I've been
(04:38):
aware of in my lifetime.
Speaker 2 (04:39):
No, And that was going to be my next question,
could broadcasts be at risk of losing them if they
don't toe the line? Would they be legal precedent for this.
Speaker 3 (04:47):
I don't think so, in the sense that the Communications
Act says that if you are a licensed entity, so
if you want a broadcast license as a local affiliate,
you do have to air programming that's in the public interest.
But the FCC's power to revoke licenses on the basis
to that standard is seriously limited by the First Amendment. So,
(05:10):
for instance, if the government issues a license to a
local broadcaster, it then can't threaten to revoke that license
simply because it does not like the speech that the
affiliate is airing. It would take something more serious, like,
for instance, the intentional and deliberate distortion of facts by
the broadcaster. So it's not to say that the FCC
has no power here, but the SEC doesn't have the
(05:32):
types of power that would allow it to engage in
viewpoint discrimination. That's very clearly foreclosed by the First Amendment.
Speaker 2 (05:39):
Also at play here is the fact that nick Stan
needs SEC approval to complete a merger with their rival,
So what role has this played in the suspension?
Speaker 3 (05:49):
So I think it's impossible to say definitively. But let
me just speak generally about the law. Government can unconstitutionally
coerce private entities to punish speech, not simply by threatening
them with punishment, so for instance, the revocation of a license,
but also by promising them certain rewards if they censor
(06:12):
a third party's speech. So the Supreme Court, our Supreme Court,
and its most recent decision on these matters, it's a
case called Nra versus Vulo. There the Court was clear
that both threats and inducements, both both sticks and carrots,
can unconstitutionally coerce private entities to censor speech. And so
(06:34):
it's not just that the FCC might be threatening ABC's
affiliate broadcast licenses. But for instance, you know, if a
merger approval was made contingent on the suppression of speech,
that also could raise serious First Amendment problems.
Speaker 2 (06:50):
In my introduction I mentioned Republican Ted Cruz has referred
to Britain Carr's actions as being that of a mob boss.
Has he overstepped the mark here?
Speaker 3 (07:03):
By he do you mean Ted Cruz or the f
c C chairman them, Well, I mean, I think I
think Senator Cruz is onto something. I mean, you know,
I think the point he's raising is that this is
a double edged sword. If you wield the power of
the federal government, all of its financial power, all of
(07:24):
its regulatory power, to censor or punish speech that the
current administration does not like, it's not entirely clear why
once the current incumbents are out of power, that these
weapons couldn't be turned against them. And I think that's
the basic principle that Ted Cruz is pointing at. And so,
you know, in that sense, I think he's he's right.
(07:48):
You know, I asked for the FCC chairman, Yes, I do.
You know again, I think on face, uh, this this
is something that's not again precedent, precedented within recent memory,
and it does speak to I think at least the
specter of First Amendment violations.
Speaker 2 (08:04):
Hey, Jacob, we're seeing at the right when can serve
as such as Tucker Carlson coming out and being Shapiro,
they're also sort of speaking out saying mister Kirk never
wanted his you know, would have wanted his death to
be used as a pretext for crack down on speech.
This isn't really almost a Democrat versus Republican issue. It's
bigger than that.
Speaker 3 (08:24):
I mean, I think that's right. I think that's right,
And again, you know, I don't want to equivocate. I
think what's happening right now under this Republican administration is
importantly different and more extreme from what we've seen in
other recent administrations. But that being said, you know, it's
not a partisan issue if we let politics work this
way generally, which is to say that if there's a
(08:46):
regime change and the other party comes into power, then
it's certainly conceivable, you know, we could be if we
don't change our ways, and if we don't push back
against this as a matter of principle, that we would
be stuck in a spiral of a liberalism in which
different teams take turns using the federal government to punish
each other. And I mean, you know, I think it's
self evident that would be a very very bad outcome
(09:08):
for democracy in this country.
Speaker 2 (09:10):
Way too from here, Do you see a further crackdown
on the media bang abu, you know, to express criticism
of the government.
Speaker 3 (09:17):
I think in the short term, yes, we're going to
continue to see episodes like this. Political scientists, very prominent
political scientists, have looked at the United States, and they
warn increasingly that the United States is either backsliding or
has backslid into what they call competitive authoritarianism. So what
does that term mean. It just means that you have
(09:39):
a country where there are still elections, and the incumbents
can lose those elections, so they aren't totally controlled by
the state or totally rigged, but nonetheless, the incumbents unfairly
tilt the playing field in their favor, and so it's
harder for the opposition to win elections because it raises
the political, social, and legal cost of normal democratic opposition.
(10:01):
And so, you know, I think those warnings are are persuasive,
and I do think that we will probably in the
short term continue to see activity like this speech suppressive activity.
Now that being said, I think that actually means it's
more important to continue to speak because even though the
costs are hired to speak out against this administration than
they've been in the past, they aren't so high at
(10:23):
least for many of us, that it's prohibitive. And so
it's really really important to keep speaking out because it's
silence rather than speech that allows the government to really
raise the costs of opposition and that's not where we
want to be so and that's why we don't want
to see corporations like Disney so quickly acquiescing to government pressure.
It's a bad sign and corporations and institutions and people
(10:46):
need to need to continue to speak out against it.
Speaker 2 (10:48):
Oh, it's fascinating stuff. Thank you so much for talking
us throughout this morning, Jacob.
Speaker 3 (10:52):
Thank you so much for having me.
Speaker 2 (10:54):
That was assistant now Professor Jacob A Shrine not Brigs.
Speaker 1 (10:58):
For more from the Sunday session with Friandjessica Rudken, listen
live to news Talks it Be from nine am Sunday,
or follow the podcast on Iharbright Yo
You're listening to the Sunday Session podcast with Francesca Rudkin
from News talksb SO.
Speaker 2 (00:13):
Over the last twenty four hours or so, we have
seen Republicans and right wing conservatives speak out against the
suspension of late night talk hosts. Jimmy Kimmel, Ted Cruz,
Tucker Carlson, and Ben Shapiro have expressed concerns around the
President's set, with Republican Cruz comparing FCC Chairman Brendan Carr's
actions to that of a mob boss. To discuss the
legal aspects of all this, I'm joined by assistant law
(00:35):
Professor Jacob China Briggs. Jacob's work focuses on First Amendment
freedoms of speech and the press. Jacob, thank you so
much for being with us. This is about more than
what Jimmy Kimmel said about the killing of Charlie Kirk
and the implications around the suspected gunman. It seems a
lot more complicated than just that. So can you explain
the role the chairman of the Federation of Communications Commission
(00:58):
had in all this?
Speaker 3 (01:00):
Sure? Sure? So. Starting with the FCC chair shortly after
the remarks that Jimmy Kimmel made, which we could talk
about those remarks specifically. I think it's important to be
precise about what he actually said. But after that monologue,
the chair of the FCC made public statements which suggested
(01:23):
that if ABC did not act to discipline Kimmel, the
FCC would have, you know, something to the effect of
some work ahead of it. And if you listen to
the interview in context, that's a thinly veiled threat. I
think it's easy to read it that way, that the
FCC might act to, for instance, revoke the broadcast license
of local ABC affiliates using public airwaves. At one point,
(01:45):
he says, we can do this the easy way or
the hard way, which is just, you know, so on
the nose as to be a cliche. But I think
it's it's easy to read those statements as you know,
threatening forthcoming action regulatory action against regulated entities like ABC
if it did not take action in response to a
speech that Jimmy Kimmel made that the administration.
Speaker 2 (02:08):
Did not like can he make streets like that?
Speaker 3 (02:12):
So he can in a literal sense, I think it
raises some serious First Amendment concerns. So the First Amendment
to the US Constitution guarantees the freedom of speech, and
typically the First Amendment only applies to government actors, which
is to say that private entities cannot typically violate a
person's freedom of speech. But the Supreme Court has been
(02:34):
clear in interpreting the First Amendment that the government cannot
force private intermediaries to do its censorship work for it.
That also violates the First Amendment. And I think this
case is fairly exemplary of that principle. So even if
it's ABC rather than the federal government that's taking Jimmy
(02:56):
Kimmel off the air, if Jimmy Kimmel could prove that
ABC only did that in response to the government's coercion,
then there would be a big First Amendment problem there.
Speaker 2 (03:06):
Okay, so he could Kimmel could sue.
Speaker 3 (03:09):
Uh, you know, it's that's a complicated question for a
bunch of procedural reasons. But I think, you know, the
way I would think about it is if he could,
as a procedural matter, get into court, then you know
what lawyers refer to as the merits of the case,
the actual First Amendment issues. I think it looks like
he has a fairly strong First Amendment claim here. But
(03:30):
you know, predicting legal outcomes is always more art than science,
and I don't want to pretend to have a sort
of foresight that I don't, But just looking at the
face of these facts, yes, I think there would be
a colorable First Amendment claim.
Speaker 2 (03:43):
Here, Jacob, Are you aware at all of the if
CC chairman or an i FCC chairman in the past,
you know, making comments like.
Speaker 3 (03:51):
This, not in recent memory, And I think you know
that's that's part for the course of this administration acting
distinctly from you know, recent previous administrations. It's not as
if the United States doesn't have episodes of serious censorship
in its history. It certainly does, but I think in
recent memory, these ongoing events are stark in their distinctiveness. Now,
(04:15):
I will say, generally speaking, the FCC does have power
over the licenses of local broadcast affiliates. That comes from
a nineteen thirty four law that was passed by the
US Congress called the Communications Act. But generally speaking, using
the authority over broadcast licenses as a form of coercion
to threaten broadcast affiliates, that's not something that I've been
(04:38):
aware of in my lifetime.
Speaker 2 (04:39):
No, And that was going to be my next question,
could broadcasts be at risk of losing them if they
don't toe the line? Would they be legal precedent for this.
Speaker 3 (04:47):
I don't think so, in the sense that the Communications
Act says that if you are a licensed entity, so
if you want a broadcast license as a local affiliate,
you do have to air programming that's in the public interest.
But the FCC's power to revoke licenses on the basis
to that standard is seriously limited by the First Amendment. So,
(05:10):
for instance, if the government issues a license to a
local broadcaster, it then can't threaten to revoke that license
simply because it does not like the speech that the
affiliate is airing. It would take something more serious, like,
for instance, the intentional and deliberate distortion of facts by
the broadcaster. So it's not to say that the FCC
has no power here, but the SEC doesn't have the
(05:32):
types of power that would allow it to engage in
viewpoint discrimination. That's very clearly foreclosed by the First Amendment.
Speaker 2 (05:39):
Also at play here is the fact that nick Stan
needs SEC approval to complete a merger with their rival,
So what role has this played in the suspension?
Speaker 3 (05:49):
So I think it's impossible to say definitively. But let
me just speak generally about the law. Government can unconstitutionally
coerce private entities to punish speech, not simply by threatening
them with punishment, so for instance, the revocation of a license,
but also by promising them certain rewards if they censor
(06:12):
a third party's speech. So the Supreme Court, our Supreme Court,
and its most recent decision on these matters, it's a
case called Nra versus Vulo. There the Court was clear
that both threats and inducements, both both sticks and carrots,
can unconstitutionally coerce private entities to censor speech. And so
(06:34):
it's not just that the FCC might be threatening ABC's
affiliate broadcast licenses. But for instance, you know, if a
merger approval was made contingent on the suppression of speech,
that also could raise serious First Amendment problems.
Speaker 2 (06:50):
In my introduction I mentioned Republican Ted Cruz has referred
to Britain Carr's actions as being that of a mob boss.
Has he overstepped the mark here?
Speaker 3 (07:03):
By he do you mean Ted Cruz or the f
c C chairman them, Well, I mean, I think I
think Senator Cruz is onto something. I mean, you know,
I think the point he's raising is that this is
a double edged sword. If you wield the power of
the federal government, all of its financial power, all of
(07:24):
its regulatory power, to censor or punish speech that the
current administration does not like, it's not entirely clear why
once the current incumbents are out of power, that these
weapons couldn't be turned against them. And I think that's
the basic principle that Ted Cruz is pointing at. And so,
you know, in that sense, I think he's he's right.
(07:48):
You know, I asked for the FCC chairman, Yes, I do.
You know again, I think on face, uh, this this
is something that's not again precedent, precedented within recent memory,
and it does speak to I think at least the
specter of First Amendment violations.
Speaker 2 (08:04):
Hey, Jacob, we're seeing at the right when can serve
as such as Tucker Carlson coming out and being Shapiro,
they're also sort of speaking out saying mister Kirk never
wanted his you know, would have wanted his death to
be used as a pretext for crack down on speech.
This isn't really almost a Democrat versus Republican issue. It's
bigger than that.
Speaker 3 (08:24):
I mean, I think that's right. I think that's right,
And again, you know, I don't want to equivocate. I
think what's happening right now under this Republican administration is
importantly different and more extreme from what we've seen in
other recent administrations. But that being said, you know, it's
not a partisan issue if we let politics work this
way generally, which is to say that if there's a
(08:46):
regime change and the other party comes into power, then
it's certainly conceivable, you know, we could be if we
don't change our ways, and if we don't push back
against this as a matter of principle, that we would
be stuck in a spiral of a liberalism in which
different teams take turns using the federal government to punish
each other. And I mean, you know, I think it's
self evident that would be a very very bad outcome
(09:08):
for democracy in this country.
Speaker 2 (09:10):
Way too from here, Do you see a further crackdown
on the media bang abu, you know, to express criticism
of the government.
Speaker 3 (09:17):
I think in the short term, yes, we're going to
continue to see episodes like this. Political scientists, very prominent
political scientists, have looked at the United States, and they
warn increasingly that the United States is either backsliding or
has backslid into what they call competitive authoritarianism. So what
does that term mean. It just means that you have
(09:39):
a country where there are still elections, and the incumbents
can lose those elections, so they aren't totally controlled by
the state or totally rigged, but nonetheless, the incumbents unfairly
tilt the playing field in their favor, and so it's
harder for the opposition to win elections because it raises
the political, social, and legal cost of normal democratic opposition.
(10:01):
And so, you know, I think those warnings are are persuasive,
and I do think that we will probably in the
short term continue to see activity like this speech suppressive activity.
Now that being said, I think that actually means it's
more important to continue to speak because even though the
costs are hired to speak out against this administration than
they've been in the past, they aren't so high at
(10:23):
least for many of us, that it's prohibitive. And so
it's really really important to keep speaking out because it's
silence rather than speech that allows the government to really
raise the costs of opposition and that's not where we
want to be so and that's why we don't want
to see corporations like Disney so quickly acquiescing to government pressure.
It's a bad sign and corporations and institutions and people
(10:46):
need to need to continue to speak out against it.
Speaker 2 (10:48):
Oh, it's fascinating stuff. Thank you so much for talking
us throughout this morning, Jacob.
Speaker 3 (10:52):
Thank you so much for having me.
Speaker 2 (10:54):
That was assistant now Professor Jacob A Shrine not Brigs.
Speaker 1 (10:58):
For more from the Sunday session with Friandjessica Rudken, listen
live to news Talks it Be from nine am Sunday,
or follow the podcast on Iharbright Yo
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