Disney's shocking decision to suspend Jimmy Kimmel "indefinitely" under pressure from the Federal Communications Commission is the Trump Administration's latest body blow against two and a half centuries of first amendment protection of speech. FCC Chairman Brendan Carr appeared on Fox News - of course - to proclaim this action as a 'turning point."
For possibly the first time in this Administration, a Trump-appointed official's analysis was surprisingly understated. In truth, the war on any political opposition speech and the legal framework that undergirds it is so far beyond any "turning point" that I don't think we can even see one in the rearview mirror.
For any who missed the basics here, the FCC Chairman publicly ripped the comedian and late-night ABC network talk show host Jimmy Kimmel for what Carr claimed was misstating the political affiliation of the alleged assassin of Charlie Kirk. No matter what Kimmel said, there isn't much doubt we're talking about political speech at the very core of the protections from the first amendment. This wasn't some slanted, politically-motivated investigation - it was the musings of a comedian.
But boy was someone teed off here. Disney CEO Bob Iger, seemingly in alignment with Disney's entertainment chief Dana Walden, responded to public pressure from Carr, perhaps under a bit of influence from 1600 Pennsylvania Avenue, to take it upon themselves to suspend Kimmel. No internal investigation, no external government complaint, no legal action against Disney. Just a public whine, and that was enough for a stunning capitulation.
Michael Corleone once said that killing of an enemy of his family was "not personal, it's strictly business." With Kimmel and the assault on speech? It feels like a whole lot of personal rather than the "business" of government.
Where to start here since Kimmel is hardly the beginning or the end? You've got to look at this with a wide lens. And this isn't about the heavy hand of the government. It is the story of how many corporate entities have capitulated almost immediately in response.
Who do think goes about ensuring that the first amendment functions effectively to shelter "the freedom of speech, or of the press..." It's lawyers. And it isn't just scrappy public interest lawyers taking up the cause. When the New York Times and the Washington Post were fighting for their corporate lives against the Nixon Administration over the publication of the Pentagon Papers, it took lawyers from old-line law firms such as Cahill Gordon & Reindel and Williams and Connolly to help win a far-from-slam dunk case. When the higher standard of libel protection was enunciated by the Supreme Court in New York Times v. Sullivan, it was lawyers at Loeb & Loeb on the Times' brief. And when CBS’s reporting on the Vietnam War came under attack in Westmoreland v. CBS, it was David Boies, then a young lawyer from Cravath, Swaine & Moore, who represented CBS and 60 Minutes.
In the face of this history, it was horrifying to see the Trump Administration’s immediate attack on the business relationships of some of the country’s most prestigious law firms whose only “transgression” was representing causes and individuals disfavored by this Administration. It was only more galling to see the rapid submission of many of them before any fight even got underway, including A&O Shearman, Cadwalader, Wickersham & Taft, Kirkland & Ellis, Latham & Watkins, Milbank, Paul, Weiss, Rifkind, Wharton & Garrison, Simpson Thacher & Bartlett, Skadden, Arps, Slate, Meagher & Flom, and Willkie Farr & Gallagher. These firms paid tribute through pledging hundreds of millions of dollars of pro bono work for Trump-favored causes. There is no first amendment violation here but a twisted example of compelled legal action in service of the government’s agenda.
Forget the constant barrage of X and Truth Social posts that emanate from the President and his acolytes that directly attack any news organization or reporter deemed insufficiently supplicating. The Trump Administration has been unafraid to flex its regulatory muscles directly in service of its political ends including direct regulation of speech.
In its approval of the Skydance-Paramount merger, one of the conditions for its approval was for CBS News to hire a Trump Administration-approved ombudsman, Kenneth Weinstein, with a pronounced conservative background. Could anyone have imagined Edward R. Murrow, Walter Cronkite or 60 Minutes creator Don Hewitt putting up with this? The deal also permits the oversight of CBS entertainment programming to ensure what the government calls "a diversity of viewpoints." Could you get the government to interfere in speech any more than this?
It isn't hard to see the heavy hand of regulatory threats in the seemingly independent decision by Nexstar Media Group to preempt the Kimmel show even before the Disney-Iger cave. Nexstar is already the largest broadcaster in the country, and has proposed to acquire TEGNA, a deal which would in some fashion require the Trump Administration to overlook or override longstanding limits on the ownership of broadcast stations in the U.S. Carr already has applauded Nexstar's preemptive strike (no pun intended) and you can be sure that won't go unnoticed or unrewarded in the approval process underway.
And although it doesn't take regulatory powers to manipulate press access to the White House, the Administration hasn't been shy about exercising all of its discretionary authority in this area. Denying certain reporters their White House passes, berating of journalists from the White House podium and rethinking the "legitimacy" of news organizations and their access are all part of the speech controlling armada under sail.
Speech of course goes far beyond news. Kimmel and Stephen Colbert may have hard-edged takes on Trump and the political environment, but in the end of the day they are trying to attract viewers through entertaining them. Their demise - and hopefully Kimmel will return - is a blow to irreverence to the current regime as much as anything else. Could David Letterman have survived this?
We have the closure of the Corporation for Public Broadcasting and limitations on government funding of arts and humanities. Studies have demonstrated a direct correlation between this funding support and the ability of small rural communities to gain access to objective investigative journalism. The Smithsonian has revamped the content of exhibits (notably around the Trump impeachments), and the Trump Administration has launched a "comprehensive review" of eight different Smithsonian museums including the National Museum of American History and the National Museum of African American History and Culture. When the next generation seeks to learn about history, what will they be learning?
Speaking of learning, the Administration’s assault on universities is all part of this tableau. The legitimate fight against antisemitism has been overrun by a broadside insertion of the federal government into curriculum oversight and hiring practices. Bret Stephens wrote a wonderful piece in the New York Times this week about the power of critical thinking and argument. But all around us the seed for the flowering of such debate is being subjugated.
I wish I could conclude with "the answer is" but alas there is no easy one to plug in. The poet Mary Oliver once provided her "instructions for life" as the following: "Pay attention. Be astonished. Tell about it." That seems about as good a strategy as any I know.