By: Whitney Hoffman, Vol. 24 Staff Writer

No Laughing Matter

On Monday September 15, Jimmy Kimmel remarked live on his late-night show about the death of Charlie Kirk. Kirk, a prominent American conservative political activist and entrepreneur, was assassinated during a Turning Point USA event at Utah Valley University several days prior. During his monologue, Kimmel stated that the “Maga gang” was “desperately trying to characterize [the] kid who murdered Charlie Kirk as anything other than one of them” and was attempting to “score political points” from the assassination. Kimmel’s remarks prompted the swift response of the FCC. Brendan Carr, an FCC chairperson, threatened to act against ABC and its parent company, Disney, if discipline against Kimmel was not administered. “We can do this the easy way or the hard way,” Carr warned. Hours later, it was announced that Jimmy Kimmel Live! would be taken off air indefinitely.

Broadcasting Boundaries on Free Speech

It is well-settled law that media broadcasting entities have free speech rights under the First Amendment. However, previous Supreme Court benches have upheld unique and lowered standards for broadcasters as compared to print media or online platforms. In Red Lion Broadcasting Co. v. FCC, the Supreme Court examined the FCC’s “fairness doctrine” and closely associated personal attack and political editorial rules.

In Red Lion, the Red Lion broadcasting station was reprimanded by the FCC because their station aired a personal attack against Fred Cook, an individual who was accused of working for Communist-affiliated publications and attacking J. Edgar Hoover and the Central Intelligence Agency in one of his published books. Cook, who decided that the aired discussion constituted a personal attack, contacted Red Lion and requested airtime to respond to the allegations. When Red Lion refused to allow Cook to respond, the FCC declared that Red Lion failed to meet its obligations under the fairness doctrine. Red Lion challenged the FCC’s personal attack regulations as unconstitutional restrictions on free speech. The Supreme Court ultimately upheld the Court of Appeals for the DC Circuit’s decision that the FCC regulations were constitutional.

In its holding, the Red Lion Court was clear in noting that when a personal attack has been made on a public figure or group involved in a public issue, “the attacked individual [or entity must] be offered an opportunity to respond.” Further, the court clearly stated that “insofar as there is an obligation of the broadcaster to see that both sides are presented, and insofar as that is an affirmative obligation, the personal attack doctrine and regulations do not differ from the preceding fairness doctrine.” The Red Lion Court further clarified that it was immaterial whether the ability to respond was given to the attacked individual themselves or to agents with the right to speak on the attacked individual’s behalf, but rather the prohibited action was leaving the “response in the hands of the station which has attacked their candidacies, endorsed their opponents, or carried a personal attack upon [the affected individual].”

However, since the Fairness Doctrine and personal attack regulations were repealed by the FCC in 1987 and 2000, respectively, there have been calls and questions by both sides of the isle as to whether the Fairness Doctrine should be reinstated. Despite the decision that the Fairness Doctrine and associated personal attack regulations stifled First Amendment freedom of broadcasters, there is question as to whether the public would benefit from reinstatement of the rule because “America is now more polarized and misinformed than ever.”

Will broadcasters First Amendment rights take the stage again?

It is clear that even after the fall of the Fairness Doctrine and its associated regulations, free speech rights for broadcasting and media entities can still come under attack by different players. In fact, the Supreme Court addressed the issue just one year ago when deciding Moody v. NetChoice, LLC. Justice Kagan, writing for the majority, was clear that “a State cannot advance some points of view by burdening the expression of others. To give the government that power is to enable it to control the expression of ideas, promoting those that it favors and suppressing those it does not. And that is what the First Amendment protects all of us from.”

While Jimmy Kimmel has not yet taken legal action against ABC or the FCC about the circumstances surrounding his show being taken off air, it seems clear that he has a good case to make. Even in the absence of the protections of the Fairness Doctrine, Kimmel could likely show a causal link between Mr. Carr’s statements on behalf of the FCC and ABC’s decision to publicly reprimand his comments about Charlie Kirk. The sentiment is clear that the government cannot, either indirectly or under the guise of vague threats, “convey a threat of adverse government action in order to punish or suppress” disfavored speech. Yet it seems that such threatening was the exact catalyst which set ABC’s actions against Kimmel in motion.

So, will broadcaster’s free-speech rights take the stage again in response to a lawsuit by Jimmy Kimmel? It appears that we, the anxious audience, will have to wait and see.