Did Brendan Carr Violate the First Amendment? And Can Anything Be Done?

the constitutional law of jawboning

Government officials express displeasure with what private persons, corporations and advocacy groups say all time. During the Covid epidemic, President Biden famously accused Facebook of “killing people.” Gavin Newsom described the NRA as a “trash organization.” And of course, what is a day without a Truth from President Trump, excoriating the New York Times or Zohran Mamdani or Rosie O’Donnell for their views?

For the most part, this kind of criticism is considered part of what Judge Posner described memorably once as “freedom of government speech.” It is immunized from First Amendment constraints (even if, because government actors do not themselves possess First Amendment rights, not technically protected), on the view that democratic values are promoted, not hindered, by granting officials broad power to express their own opinions about matters large and small.

There is a line, however, that officials cannot cross, and in a democratic system that line makes all the difference. Officials can use their voice to influence public opinion and, in that way, shape the expressive choices that others make. But they cannot use their powers to coerce private actors into changing how they speak or associate. This kind of speech is not considered government speech; it is considered unconstitutional coercion (or what is often referred to popularly simply as “jawboning”) and never permitted, at least as a formal doctrinal matter. Enforcing the rule against jawboning can be a tricky task, because so much jawboning occurs behind private doors, and victims of government coercion rarely disclose this fact because they are cowed. But the rule remains crucial, if underenforced, because it helps advance (albeit only imperfectly) what it is perhaps the central task of the First Amendment: namely, protecting the democratic public sphere from government control.

The importance of the rule helps explain why only last year a unanimous Court reaffirmed, in NRA v. Vullo, that it is a categorical one, and not governed by the ordinary ends-means balancing that applies in First Amendment cases. As I explain in a forthcoming paper, Vullo, dismissed by some as a nothing burger of a decision, is a landmark First Amendment decision. Although free speech doctrine has recognized that government threats can violate the First Amendment for over sixty years now, lower courts had struggled for decades to figure out when precisely government threats against private speakers were significant enough to violate the First Amendment. Vullo makes clear that the answer to this question is a simple one: always. That is to say: officials may never use the threat of adverse government action to coerce a private party into punishing or suppressing disfavored speech. It doesn’t matter how significant the threat of harm is. It doesn’t matter how compelling the interests the officials seek to further. And it doesn’t matter if the official had the power to exercise that power for non-speech suppressive purposes. As Justice Sotomayor put it in her majority opinion, “government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” Full stop.

This rule strongly suggests that FCC Commissioner Brandon Carr violated the First Amendment when he appeared to threaten ABC, or more specifically, its local network affiliates (who actually air its programming and over whom the FCC exercises control) with the loss of their broadcast licenses if they did not take Jimmy Kimmel off the air after the comedian made controversial, and what many conservatives believed to misleading, comments about Charlie Kirk’s killer. Specifically, Carr warned ABC, in a podcast interview, that if it didn’t “change conduct and take action… on Kimmel” the FCC would have to act instead, and emphasized his desire to reinvigorate the requirement, set down by the Communications Act of 1934, that broadcasters act in the “public interest” in order to maintain their public broadcast license. Carr did not in fact call for Kimmel to be fired, although he did suggest that a suspension of his show was something the FCC would look at when reviewing the station’s license renewal. But after ABC did indefinitely suspend Kimmel’s show, Carr took to Twitter to praise the decision, and to remind local broadcasters more generally of their obligation to further the “public interest.”

These statements clearly communicate a threat to ABC that license renewal would be difficult for its affiliates if it did not take action against Kimmel. This threat is one of the scariest threats that an FCC Commissioner can issue to a broadcaster. Indeed, as Judge David Bazelon explained in a terrific paper exploring the remarkable power that the FCC wields over speech this threat has been used very effectively to coerce broadcast compliance with FCC dictates of all kind—dictates against the broadcast of song lyrics that the FCC believed expressed too positive an attitude about drugs, or emphasized sex and violence too much. Here however, Carr appears to be wielding the threat in the most problematic way, from First Amendment purposes: to pressure private companies to suppress not just a certain kind of speech (overly violent song lyrics say) but a particular speaker—someone who had expressed a political opinion that the government disliked, and the President specifically targeted. It represents, as such, a remarkably clear illustration of why the doctrine takes the problem of jawboning so seriously.

Of course, the devil is in the details and if Jimmy Kimmel were to sue Carr for violating his First Amendment rights, he would have to convince a judge or jury that Carr was not speaking hyperbolically; that in fact, he was attempting to communicate a serious threat. And he would also have to show that it was this threat that led ABC to suspend his show indefinitely, rather than (for example) the public controversy about Kimmel’s statements. Neither requirement seems impossible to establish however, given the reporting that has emerged about the episode.—which makes this one of the rare jawboning cases in which, the public evidence appears strong enough to survive a motion to dismiss and to the very least get the plaintiff the right to discovery.

Whether Kimmel will sue is of course an open question and on the whole, perhaps unlikely given the limited remedies that may be available to him if he does. Were he successful he could get a declaratory judgment, which would be of important symbolic value. But Kimmel could not get damages, because Congress has not seen fit to provide these for federal violations of First Amendment rights. He perhaps could get injunctive relief: a command from a court that Carr not issue similar threats subsequently, but this would require showing that such a course of action is likely to be ongoing, which it might be in general but is very unlikely with respect to Kimmel himself, given Carr already got everything he set out to achieve. But Kimmel is unlikely to get a court to order ABC to reinstate his show. The First Amendment protects ABC’s editorial discretion, after all. Hence, if Bob Iger were to wake up the day after the court verdict and decide that the treat of economic retaliation from private parties was sufficiently real to justify Kimmel’s suspension, there is very likely nothing the law could do about it.

This is the paradox that jawboning cases often present: the rule is powerful, but the remedies are very weak. Nonetheless, this may be a sufficiently stark example of government jawboning—and an indicator, more generally, of how aggressively officials in the Trump administration are attempting to control the expressive choices of private media companies—that a court decision recognizing the First Amendment violation would be salutary nonetheless. A symbolic victory is still a victory, perhaps especially in these times when core democratic values need as much reinforcement as they can get. Whatever the case, this depressing and dramatic incident is a good reminder of how much power government officials possess to shape the decisions of the nominally private marketplace of ideas by making their preferences known, in a sufficiently threatening manner, in a podcast interview or a tweet.

Available on SSRN.