Kimmel
(Photo
by
Jason
Kempin/Getty
Images)
Few
Onion
headlines
have
better
captured
this
moment
in
history
like,
“Area
Man
Passionate
Defender
Of
What
He
Imagines
Constitution
To
Be.”
Through
the
grace
of
social
media,
whatever
dumbass
legal
theory
a
non-lawyer
cooks
up
based
on
half-remembered
court
cases,
can
now
metastasize
throughout
the
country,
plopped
into
the
For
You
feeds
of
any
other
unfortunate
souls
that
tech
companies
feel
match
the
speaker’s
advertising
demographic.
People
have
gotten
the
Constitution
wrong
forever.
And
those
same
people
have
exercised
their
First
Amendment
right
to
utter
their
daft
brain
droppings.
But
we
used
to
have
an
infrastructure
in
place
to
remind
an
unsuspecting,
credulous
audience
that
these
people
rest
on
a
sliding
scale
between
monumentally
ill-informed
and
flat
stupid.
In
the
wake
of
Jimmy
Kimmel’s
suspension,
many
have
taken
full
advantage
of
the
freedom
to
spread
misinformation
about
the
Constitution
online.
But,
as
people
with
real
live
law
degrees,
we’re
here
to
inform
you
that,
no,
the
FCC
threatening
to
take
away
broadcast
licenses
because
they
don’t
like
comedians
joking
about
Republicans
is
not
a
natural
extension
of
Murthy
v.
Missouri
—
the
Supreme
Court
case
establishing
that
the
government
can,
in
fact,
have
a
conversation
with
Facebook
during
a
deadly
pandemic
to
say
posts
about
“injecting
yourself
with
Lysol”
is
bad
advice.
And
yet,
here
we
are:
Calling
this
“a
radical
cycle
of
illiberalism”
is
like
calling
The
Bear
a
comedy
—
a
disingenuous
claim
made
for
self-serving
purposes.
In
reality,
the
gulf
between
the
situation
in
Murthy
and
Kimmel’s
firing
could
scarcely
be
wider.
One
was
non-coercive
and
the
other
was
explicitly
coercive.
THANK
YOU
FOR
YOUR
ATTENTION
TO
THIS
MATTER!
Murthy
grew
out
of
the
slip-shod
sensationalization
of
“The
Twitter
Files,”
a
series
of
internal
Twitter
documents
scrounged
up
by
Elon
Musk
after
acquiring
the
company
and
spun
into
a
conspiracy
theory
that
shadowy
actors
within
the
federal
government
routinely
coerced
social
media
platforms
to
censor
content.
Specifically,
law
enforcement
sharing
their
findings
about
election
fraud
and
health
agencies
discussing
potentially
dangerous
COVID
misinformation.
Based
on
these
conversations,
social
media
companies
might
adjust
their
practices
to
downgrade
conspiracy
theories…
or
might
not!
That’s
going
to
be
a
key
fact
later.
This
Musk-peddled
tale
inspired
a
judge-shopped
challenge
from
some
state
AGs
looking
for
a
path
to
higher
office,
that
ultimately
died
in
front
of
the
Supreme
Court.
Justice
Barrett,
writing
for
a
6-3
majority,
explained
that
an
actual
claim
of
government
censorship
—
even
indirect,
“jawboning”
censorship
—
requires
the
plaintiffs
to
show
“a
substantial
risk
that,
in
the
near
future,
they
will
suffer
an
injury
traceable
to
a
Government
defendant.”
That…
simply
did
not
exist.
No
one
in
the
government
ordered
Facebook
to
delete
posts.
The
government
shared
information
at
its
disposal
and
the
tech
companies
were
free
to
do
with
that
whatever
they
wanted.
They
might
choose
to
provide
an
editorial
note
to
add
proper
context
to
that
medical
advice
from
your
8th
grade
dropout
cousin,
but
if
they
did
so,
it
was
because
they
decided
to
protect
their
customers,
not
because
the
government
threatened
to
do
anything
if
they
didn’t.
Yes,
there
were
some
very
dumb
tantrums
from
legislators,
but
they
went
nowhere
and,
more
to
the
point,
had
nothing
to
do
with
the
conversations
actually
taking
place
between
the
government
and
social
media
platforms.
Contrast
with
the
Kimmel
situation.
Trump
began
threatening
to
ask
the
FCC
—
majority
staffed
by
Republicans
and
chaired
by
Project
2025
contributor
Brendan
Carr
—
to
revoke
broadcast
licenses
over
content
critical
of
his
regime
back
in
February.
This
elevates
the
urgency
of
any
actual
FCC
threat.
After
Kimmel’s
monologue,
Carr
appeared
on
a
right-wing
podcast
and
said
that
his
agency
has
“remedies
we
can
look
at”
and
that
“these
companies
can
find
ways
to
change
conduct
and
take
action,
frankly,
on
Kimmel
or
there’s
going
to
be
additional
work
for
the
FCC
ahead.”
He
added,
“we
can
do
this
the
easy
way
or
the
hard
way.”
This
is
square
in
the
middle
of
the
standard
set
out
by
the
Supreme
Court:
“a
substantial
risk
that,
in
the
near
future,
they
will
suffer
an
injury
traceable
to
a
Government
defendant.”
Following
his
remarks,
two
conglomerates
owning
local
affiliates
pressured
ABC
to
drop
Kimmel.
Of
note,
the
FCC
can’t
actually
“take
away
ABC’s
license,”
but
rather
take
away
the
licenses
of
affiliate
broadcasters.
“And
if
there’s
local
TV
stations
that
don’t
think
that
running
that
programming
does
it,
then
they
have
every
right
under
the
law
in
their
contracts
to
preempt
it,”
Carr
said.
“And
we’ll
see
how
this
plays
out.”
Thus,
Carr’s
threat
was
directed
at
the
affiliates
and
that
in
turn
prompted
the
response.
One
of
those
conglomerates,
Nexstar
is
currently
trying
to
get
FCC
approval
to
buy
more
affiliates
in
breach
of
rules
designed
to
prevent
media
consolidation.
The
other,
Sinclair,
is
basically
a
conservative
channel
cartel
that
has
flexed
its
power
to
make
its
channels
parrot
right-wing
scripts,
misleadingly
passed
off
as
coming
independently
from
local
reporters.
Speaking
of
misleading,
that’s
what
Carr
claimed
Kimmel
had
done:
“It
was
appearing
to
directly
mislead
the
American
public
about
a
significant
fact that
probably
one
of
the
most
significant
political
events
we’ve
had
in
a
long
time,
for
the
most
significant
political
assassination
we’ve
seen
in
a
long
time,”
Carr
said.
This,
by
the
way,
is
a
lie
that’s
also
taken
on
a
life
of
its
own.
Even
some
liberals
defending
Kimmel
have
adopted
the
frame
that
Kimmel’s
comments
were
inaccurate,
but
they
were
not.
Not
that
it
would
matter
constitutionally
if
he
were
wrong,
but
there’s
no
need
to
cede
this
point
designed
to
give
the
firing
some
kind
of
moral,
if
not
legal,
justification.
You’ll
see
a
lot
of
commentary
about
how
Kimmel
“said
the
shooter
was
MAGA”
or
something
of
that
ilk,
but
what
he
actually
said
was
that
conservatives
spent
the
weekend
desperately
trying
to
prove
that
the
shooter
wasn’t
a
right-wing
radical.
Which
is
true!
As
more
evidence
leaked
out
about
Pepe
the
Frog
poses
and
Groyper
flirtations,
the
incomplete
image
of
the
shooter
tilted
toward
a
far-right
actor
and
Republicans
on
social
media
scrambled
to
push
back
or
downplay
everything
coming
out.
Here
it
is,
if
you
didn’t
actually
see
it:
The
proper
comparison
with
Murthy
would
be
the
DOJ
telling
ABC,
“just
so
you
know,
we
now
have
evidence
that
the
shooter’s
politics
veered
left
over
the
last
several
months…
you’re
free
to
do
with
that
information
whatever
you
want.”
Instead,
as
FCC
Commissioner
Anna
Gomez
explained,
“This
Administration
is
increasingly
using
the
weight
of
government
power
to
suppress
lawful
expression…
not
because
speech
glorifies
violence
or
breaks
the
law,
but
because
it
challenges
those
in
power
or
reflects
views
they
oppose.”
The
point
is
that
there
is
no
through
line
from
Murthy
to
this.
It’s
an
apples
and
koalas
comparison.
Anyone
out
there
suggesting
there’s
some
logical
extension
from
the
government
sharing
public
health
intel
with
social
media
platforms
and
threatening
to
take
away
broadcast
licenses
because
it
hurts
Republican
feelings
is,
to
use
the
technical
legal
term,
a
fucking
idiot.
As
lawyers,
we
have
a
public
duty
to
push
back
on
this
nonsense
trope
wherever
it
crops
up
—
because
we
don’t
need
to
cancel
free
speech
here,
we
just
need
to
deploy
our
legal
acumen.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.