Dear readers,
Disney has “indefinitely” ceased airing Jimmy Kimmel Live under pressure from FCC chairman Brandon Carr and from Nexstar and Sinclair, two major owners of ABC affiliate stations, which themselves faced significant pressure from Carr. As Ken and I discuss, it is illegal for federal officials to “jawbone” private actors into punishing other private actors for their speech. For relief to be possible, there has to be a pretty clear connection between the jawboning and the speech restriction, but in our view, this situation looks more similar to National Rifle Association of America v. Vullo, where the Supreme Court found that connection and granted relief, than to Murthy v. Missouri, where it didn’t.
That said, who could sue? Nexstar and Sinclair both want FCC approval for mergers and don’t want to get crosswise with their regulators. (Sinclair is also ideologically aligned with the president.) Disney also doesn’t want trouble, and besides, it’s tough for them to keep airing Kimmel when so many of their affiliates refuse to take the program. Kimmel might eventually be able to sue if he gets fired. But even then, it’s not clear a court could provide him much relief besides telling the FCC to knock it off, which wouldn’t necessarily make these broadcasters interested in putting him back on air.
As we’ve often seen is the case, just because you have a right doesn’t mean you can vindicate it in court.
The Kimmel/FCC situation constitutes this week’s free episode — including a conversation about whether technological advance has rendered the FCC’s broadcast regulatory regime unconstitutional, and whether an affiliate station that wishes it could still air Kimmel has any relevant rights here.
For paying subscribers, there’s much more this week including:
Our look at the first criminal charges against Tyler Robinson, who faces the death penalty in Utah. Unlike in some other high profile cases, it’s not obvious there’s any way for the federal government to charge him — and we’re also skeptical of claims from internet lawyers that Kash Patel’s (or Pam Bondi’s) grandstanding has impaired the prosecution.
A look at Donald Trump’s new defamation lawsuit against The New York Times, and Nina Jankowicz’s loss on appeal in her suit against Fox News (about which she is incensed).
Why Lisa Cook remains on the Federal Reserve Board, for now (it has to do with the Fed being a special, unique entity in a long historical tradition).
The reason for the dismissal of terrorism charges against Luigi Mangione, and a look at why, in New York, a trial court is “Supreme” but premeditated murder is merely “second degree.”
And why Judge Tanya Chutkan found there was nothing she could do for migrants whose removals to Ghana sure appeared designed to get them back to their home countries, despite having court orders prohibiting their removal to those countries.
We hope you enjoy the episode.
