Complaining About the Right Things at the Wrong Times

The editors of the Washington Post are outraged at ABC’s network-wide preemption of Jimmy Kimmel’s late night program:

Enter FCC Chairman Brendan Carr, who sees things differently. On Wednesday, he suggested on a podcast that ABC affiliates that air Kimmel might lose their FCC licenses. “We can do this the easy way or the hard way,” Carr said. “These companies can find ways to change conduct, to take action, frankly, on Kimmel, or there is going to be additional work for the FCC ahead.” Hours later, Kimmel’s show was suspended indefinitely.

This government coercion violates the First Amendment. The government can’t block speech because it’s politically offensive. Nor can it do an end run around that prohibition by enlisting third parties to do the dirty work. You might think the FCC is a wholesale exception to this rule, given that it regulates broadcast television. You’d be incorrect. “The FCC does not have a roving mandate to police speech in the name of the ‘public interest,’” noted an expert in 2019 — a fellow by the name of Brendan Carr.

The Trump administration didn’t invent the strategy of indirect censorship backed by regulatory threats. The Biden administration’s pressuring of social media companies to remove content was the subject of a lawsuit by state leaders in Missouri and Louisiana that reached the Supreme Court last year.

While the Biden administration used veiled threats against its corporate targets to maintain plausible deniability, Carr wielded the government’s coercive power openly. “We can do this the easy way or the hard way” doesn’t leave much ambiguity. Carr is pledging to keep targeting television offerings he doesn’t consider in the “public interest,” but who will decide what that is? Carr, of course. The late-night shows are already unfunny; imagine how bad they’ll be with bureaucrats dictating content.

It was none other than Charlie Kirk who in a 2024 Supreme Court brief blasted the Biden administration’s use of “mammoth companies” to engage in censorship that “the Government could not do directly.” Now, Kirk’s death is an occasion for the Trump administration to do just that. Conservatives cheering the creation of novel censorship methods by the regulatory state would do well to consider what it will mean for them the next time Republicans lose the presidency.

I agree with the editors that Mr. Carr spoke improperly, imprudently, and, possibly, illegally. He should not have threatened ABC.

However, I also think that the editors missed a few things in their timeline. Within hours of Mr. Kimmel’s comments Nexstar, a major ABC affiliate group, announced that it was permanently preempting Mr. Kimmel’s program over the remarks. Shortly thereafter the Sinclair Group, another major ABC affiliate group announced, that it was doing the same. Then came Mr. Carr’s remarks.

My take is a little different from the editors’. I think that late night broadcast talk shows are a dying form. They’re not making money and losing viewership. There no real way to profitability for them. Disney/ABC was looking for an excuse to cancel Jimmy Kimmel Live! and Mr. Kimmel gave them one.

I also think that the editors are complaining about the wrong things at the wrong time. Mr. Kirk touched on it in his comment, cited by the editors. The graver threat to freedom of speech and of the press is the ownership of media outlets by large, publicly-held companies. Like it or not they are creatures of the government to a significantly greater degree than small, closely private-held companies are. And consolidation in media outlets has greatly accelerated in the last 20 years.

The editors should have started complaining 40 years ago when deregulation under Ronald Reagan relaxed ownership limits. Or when the “supergroups” began to emerge at the opening of this century, using “sidecar agreements” (LMAs/JSAs) to skirt FCC rules. The editors should know that. The Washington Post is different from the New York Times in that it’s not owned by a publicly-held company.