Explainer: Were Jimmy Kimmel's free speech rights violated when ABC cancelled his show?
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Although comedian Jimmy Kimmel could sue the Federal Communications Commission for free speech violations, winning would be an uphill battle.
PHOTO: REUTERS
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WILMINGTON, Delaware - Jimmy Kimmel's late-night talk show was suspended indefinitely by TV broadcaster ABC on Sept 17 after his comments about the assassination of conservative activist Charlie Kirk
Below is a look at the US’ right to free speech and whether Kimmel's rights were violated.
What did Kimmel say on his show?
On his show Jimmy Kimmel Live! on Sept 15, Kimmel suggested that Mr Kirk's shooter was a supporter of US President Donald Trump, and said "the MAGA gang" was "doing everything they can to score political points" from Mr Kirk's assassination.
He also mocked Mr Trump for responding to a reporter's question about his feelings about Mr Kirk's death by talking about the construction of a new ballroom at the White House.
How did the Trump administration react?
Mr Brendan Carr, the head of the Federal Communications Commission (FCC) which regulates broadcasters, said on a podcast hosted by conservative commentator Benny Johnson on Sept 17 that Kimmel's remarks were part of an effort to lie to the American public, and he was looking at "remedies."
He went on to say, "we can do this the easy way or the hard way."
After Kimmel's show was suspended shortly after those remarks
Mr Trump said during a news conference on Sept 18 that Kimmel was fired for low ratings
"So, you know, you can call that free speech or not. He was fired for lack of talent," Mr Trump said.
What speech is protected?
The First Amendment to the US Constitution protects free speech and other rights against government interference. Courts have said that protection includes rights against the government pressuring third parties to engage in censorship.
In a key ruling, the US Supreme Court in 1963 said the government cannot create a "system of informal censorship" by pressuring private actors.
That case involved a Rhode Island agency that had threatened prosecution against book and magazine distributors who did not stop selling specific publications it had deemed objectionable.
The Supreme Court last year said that in such cases, plaintiffs must show that the government went beyond permissible attempts to persuade and that its conduct caused them direct harm.
The court in that case refused to impose limits on President Joe Biden's administration encouraging social media platforms to remove posts
Aren’t officials free to criticise Kimmel?
Yes. Mr Trump often disparages comedians and entertainers who speak out about his policies, which is permissible.
However, government authorities cannot use their authority to suppress speech.
Legal claims would likely hinge on whether Mr Carr was threatening ABC's broadcast licence.
After Mr Carr spoke on Sept 17, Nexstar Media Group said it would stop airing Kimmel's show on its 32 ABC affiliates.
Nexstar needs FCC approval for its US$6.2 billion (S$7.9 billion) deal to acquire smaller rival Tegna, and Mr Carr thanked Nexstar for "doing the right thing."
ABC said that it was suspending Kimmel's show shortly after Nexstar's announcement.
Can Kimmel sue?
Kimmel could sue the FCC for free speech violations, but winning would likely be an uphill battle.
The First Amendment only applies to actions by the government and Kimmel would have to show that ABC was coerced by Mr Carr and the FCC into pulling him off the air. That would be a very high bar if ABC denies that it acted because of Mr Carr's comments.
Kimmel could also potentially sue ABC for breaching his contract or for employment law violations.
His ability to bring those claims in court could be limited if he signed an agreement, common in many industries including entertainment, to keep legal disputes in private arbitration.
Isn’t ABC free to cancel shows?
It is. ABC has its own speech rights and cannot be forced to broadcast a show its executives decide would hurt the company.
Kimmel would have to show a link between Mr Carr's comments and ABC executives deciding to suspend his show.
Kimmel's case would be undermined if ABC executives were suspending his show because of Nexstar's move.
Even if Kimmel sued and won, ABC's free speech rights would likely prevent a court from reinstating his show and it is unclear what remedies he could recover from the FCC.
Could viewers sue?
It would be very difficult. They would have to prove that Mr Carr pressured the broadcasters to suppress protected speech and that they were injured by his actions. Courts have taken a narrow view of who can bring that kind of case, according to legal experts. REUTERS
