In the 24 hours after ABC announced it was pulling Jimmy Kimmel’s show off the air, FCC chairman Brendan Carr has made a wave of media appearances, on CNBC, Fox News and a podcast, and he’s made more threats.
On Thursday, asked by Scott Jennings what other ABC programming could come under the agency’s scrutiny, Carr mentioned The View, whose co-hosts have been critical of Donald Trump.
Later, Trump himself suggested that broadcasters’ licenses could be threatened when they feature too much late-night content with biting humor at his expense.
These types of regulatory threats have a term — “jawboning” — and courts don’t like it, legal experts say. It’s when a public official uses their position to “inappropriately compel private action,” per Will Duffield of the Cato Institute. It’s also been referred to as “regulation by raised eyebrow.”
The FCC’s authority over programming content is limited, the agency notes on its own website, due to the First Amendment and the Communications Act.
“The FCC is barred by law from trying to prevent the broadcast of any point of view,” the agency says. “The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a ‘clear and present danger of serious, substantive evil’ come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC.”
In the furor over Kimmel’s remark about the suspect in Charlie Kirk‘s assassination, Carr said on Benny Johnson’s podcast earlier this week, “Frankly, when you see stuff like this, I mean, we can do this the easy way, or these companies can find ways to change conduct, to take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.”
Robert Corn-Revere, former chief counsel at the FCC and chief counsel of the Foundation for Individual Rights and Expression, said via email, “This is more than regulation by raised eyebrow, which sounds quaint these days. It is regulation by raised fist. Brendan Carr’s threats to ABC sound like statements by a mob boss — not those of a public official who took an oath to uphold the law and the Constitution. The sad fact is that Carr well knows he has crossed the line and is violating the law. He simply has chosen to ignore it.”
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The Supreme Court weighed in last year in a unanimous decision, NRA v. Vullo, that reaffirmed that “government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” The case involved a New York official who allegedly threatened enforcement actions against regulated entities that refused to dissociate from the pro-gun advocacy group.
In that case, the NRA challenged the actions of the public official. In the case of Kimmel and other instances where Carr has issued regulatory threats, few media companies have done so. And it’s not hard to see why: fear. Even before the Kimmel situation, industry lobbyists in D.C. had been using Corn-Revere’s mob boss scenario.
Alex Abdo, the litigation director of the Knight First Amendment Institute at Columbia University, said that the conduct that the Supreme Court ruled against “seem to be exactly what Brendan Carr has done. He threatened to revoke broadcast licenses for the affiliate stations of the network. That is about as direct a parallel to the NRA case that you can imagine.”
A spokesperson for Carr did not return a request for comment.
Defining “Public Interest”
In interviews over the past few days, Carr has insisted that what he’s doing is enforcing broadcasters’ public interest obligations, which they have to meet as a conditions of their licenses to the public airwaves.
“If there’s broadcasters out there that don’t like it, they can turn their license into the FCC,” Carr said. “But that’s our job.”
The public interest standard, a rather nebulous term, has been used by FCC officials in the past to warn broadcasters of their obligations, often using their bully pulpit to exert pressure on the industry.
Perhaps most famously, John F. Kennedy’s FCC chairman, Newton Minow, gave a speech in 1961 in which he called out a “vast wasteland” of programming on the airwaves. There was a backlash then: Sherwood Schwartz, the creator of Gilligan’s Island, named its shipwrecked boat, the S.S. Minnow, for the government official.
In his speech, Minow also said, “One editorialist in the trade press wrote that ‘the FCC of the New Frontier is going to be one of the toughest FCC’s in the history of broadcast regulation.’ If he meant that we intend to enforce the law in the public interest, let me make it perfectly clear that he is right: We do. If he meant that we intend to muzzle or censor broadcasting, he is dead wrong.”
But it’s one thing to make a speech that generally calls out broadcast networks for their content. It’s another to refer to specific shows and specific remarks.
The Supreme Court delved into the point at which the use of the bully pulpit crossed the line. In the NRA decision, the justices called it coercion, although the term was not precisely defined, Abdo noted.
Abdo said that Carr seems to be interpreting the public interest standard as the power “to police viewpoints that companies broadcast. That can’t possibly be consistent with the First Amendment.”
The Cato Institute’s Brent Skorup wrote that the “public interest” standard still gives the FCC wide discretion, noting that Carr’s predecessor, Jessica Rosenworcel, embraced it. He pointed to a release from a proposal to regulate disclosure of AI-generated content in political ads, which noted the public interest obligation “to protect the public from false, misleading, or deceptive programming and to promote an informed public.”
Skorup suggested that the public interest standard was ripe for a challenge, given the current court’s skepticism of broad regulatory power.
“As long as the FCC retains the authority to police broadcast content, every licensed station operates under an implicit threat: say something a powerful political faction dislikes, and your license is in jeopardy,” he wrote. “That’s incompatible with a First Amendment worthy of the name.”
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Carr himself has called out the policing of content in the name of the public interest. He wrote in 2019, “Should the government censor speech it doesn’t like? Of course not. The FCC does not have a roving mandate to police speech in the name of the ‘public interest.’”
Moreover, the rationale for the FCC’s authority in the public interest has been waning, given the proliferation of alternatives in cable, satellite, streaming and the internet. In an essay for the Columbia Journalism Review earlier this year, Corn-Revere wrote that the FCC’s authority “has always been in tension with the First Amendment, and the FCC’s ability to regulate broadcast content is probably at its lowest point since the commission was created, in 1934. Any effort to punish a broadcaster over its political coverage or its news judgment (not to mention jokes on late-night TV) would quickly be thrown out in court.”
Yet as much as some legal experts call out Carr’s comments as subject to challenge, it still takes a challenger, and there have been very few entities in media willing to do so. Some believe that their case would be stronger only if the FCC actually imposes fines or, in a very rare action, moves to pull a license.
Since Kimmel’s remark, the backlash has shifted from conservative furor to cries of capitulation, coming from Capitol Hill Democrats, to former President Barack Obama, to former Disney CEO Michael Eisner.
Trump has shown, though, “that if you push back he will tighten the screws even more,” Abdo said.
“Unless the courts or Congress step up, it is not clear how we get out of this cycle,” Abdo said. “It would be great if we all pushed back and defended our constitutional rights. But it is easy to understand why they don’t. They may be punished out of existence. We desperately need acts of courage, but it is easy to understand why not many people put their heads above the parapets.”
