The Trump administration is openly coercing media organizations into suppressing speech that it does not like.
On Monday night, late-night comedian Jimmy Kimmel (irresponsibly) seemed to suggest that Charlie Kirk’s killer had conservative sympathies, before making several unrelated jokes at Donald Trump’s expense.
Two days later, FCC chair Brendan Carr warned broadcasters that if they continued to disseminate Kimmel’s program, the government might fine them or revoke their licenses. Within hours, ABC had indefinitely suspended Kimmel.
This has posed a dilemma to many conservative commentators. On the one hand, right-wing pundits spent much of the past decade decrying the left’s censoriousness and insisting on the vital importance of free speech. On the other hand, they tend to think that Jimmy Kimmel is bad and that Donald Trump is good.
To their credit, some conservatives have registered their objections to Trump’s embrace of state sanctions on speech. But others have chosen to rationalize the administration’s behavior.
As they tell it, the Biden administration perpetrated more severe and illegitimate attacks on the First Amendment than Trump ever has. Liberal complaints about Kimmel’s suspension are therefore hypocritical and hyperbolic.
It is worth noting that this claim would not justify the Trump administration’s behavior, even if it were true. An attack on free speech does not need to be historically severe or unprecedented to be worthy of condemnation.
In any case, the right’s apologia for Trump’s FCC isn’t merely irrelevant but false. The president has now trammeled free speech rights far more blatantly and profoundly than his predecessor.
Why the right believes that liberals are getting a taste of their own medicine
Right-wing defenses of the Trump FCC tend to center on one fundamental grievance: During the COVID pandemic, the Biden administration pressured social media companies to deplatform conservative critiques of public health policy. Republicans believe that this was a violation of the First Amendment. And they therefore see hypocrisy in liberal protestations against Kimmel’s suspension: If the left truly opposed government suppression of speech, it would have stood up for anti-vaxxers in 2021.
What’s more, in the view of right-wing writer Mark Hemingway, Biden’s actions were much more lawless than Trump’s: The FCC has the “legitimate regulatory authority” to punish broadcasters who spread misinformation, in the manner that Kimmel did. By contrast, the Biden administration “had ZERO authority over social media and still pressured them to censor information they found inconvenient.”
To appreciate the problems with these arguments, one needs to understand what the Biden administration did and did not do, in its efforts to influence social media firms’ content moderation policies.
Amid the COVID crisis in 2021, the Biden administration sought to deter the spread of misinformation about the pandemic in general and vaccines in particular. In pursuit of this goal, it subjected social media companies to public criticism and private lobbying. At one point, President Biden accused Facebook of “killing people” by disseminating vaccine misinformation, while the White House flagged harmful posts for the company, and requested their removal or algorithmic suppression.
This conduct raised legitimate civil libertarian concerns. Technically, the Biden administration was merely offering its opinion on what social media companies should do, not dictating their policies. As White House Press Secretary Jen Psaki said of Facebook in July 2021, “They’re a private-sector company. They’re going to make decisions about additional steps they can take.”
Yet the federal government has considerable power to affect social media firms’ businesses. Companies could therefore have reasonably believed that failing to comply with Biden’s content moderation requests would have invited greater regulatory scrutiny.
Trump’s attack on free speech has no precedent
Nevertheless, the Trump FCC’s conduct constitutes a graver assault on the First Amendment than the Biden administration’s jawboning of social media firms, for two primary reasons.
First, Trump and Carr have explicitly threatened to take punitive regulatory actions against companies that air speech that they do not like. On Wednesday, Carr warned that ABC affiliates that continued to carry Kimmel’s program would risk suffering fines and license revocations.
In saying this, Carr was echoing threats that Trump had already leveled. Last month, long before Kirk’s killing and Kimmel’s scandal, the president declared that he was “totally in favor” of revoking the broadcast licenses of ABC and NBC because “they are so biased and untruthful.”
Second, the Biden administration’s lobbying of Facebook was not aimed at stifling dissent against the government, but rather, furthering public health. Vaccine misinformation presented a genuine threat to Americans’ well-being. Although the COVID vaccines ultimately provided less protection from infection than hoped, they did substantially reduce individuals’ risk of dying from the virus. Following their release, COVID death rates in Democratic and Republican areas of the country sharply diverged, due to conservatives’ greater reluctance to get vaccinated. Some research indicates that universal vaccination could have prevented more than 300,000 COVID deaths.
This doesn’t necessarily mean that the Biden administration’s behavior was justified. But it does suggest that its efforts were aimed at advancing a genuine public interest, not at undermining its political opposition.
The Trump FCC, by contrast, has been targeting speech critical of the administration.
It is true that Carr’s ostensible complaint with Kimmel was that the host spread misinformation about Kirk’s assassination. But we know that this administration does not harbor a principled objection to unfounded speculation about Kirk’s death — because it has relentlessly engaged in such speculation itself, suggesting repeatedly (and baselessly) that progressive organizations were implicated in the activist’s killing.
In reality, the administration almost certainly jumped on Kimmel’s indiscretion because the host is a critic of their regime. We can discern as much from context: When the president threatened to revoke ABC’s license in August, he did so on the grounds that the network had been running “97% BAD STORIES” about him, despite his “very high popularity.” Thus, it is this administration’s explicit position that broadcasters who cover it too critically should be barred from the airwaves.
Crucially, Trump’s FCC has not merely threatened to subject adversarial outlets to heightened regulatory scrutiny but actually done so. Upon taking office, Carr launched an investigation into ABC for fact-checking Trump during a 2024 presidential debate and another against CBS for its editing of an interview with then-Vice President Kamala Harris. These probes were both inspired by tendentious allegations of political bias — complaints that the FCC would lack legal authority to redress, even if they could be proved.
Nonetheless, by signaling its willingness to use regulatory discretion for partisan ends, the FCC succeeded in compelling America’s most-watched broadcast network into adopting more favorable editorial practices. Earlier this year, CBS’s parent company, Paramount Global, was seeking to merge with Skydance Media, a transaction that required FCC approval. To secure the administration’s blessing, Paramount pledged to ensure that CBS’s news and entertainment programming would be free of bias. The company also committed to hiring an ombudsman who would review any complaints about its content’s political slant. The FCC’s sole Democratic commissioner, Anna Gomez, decried these concessions as “never-before-seen controls over newsroom decisions and editorial judgment, in direct violation of the First Amendment and the law.”
This precedent may have contributed to Kimmel’s suspension. Shortly after Carr aired his threats against ABC affiliates, Nexstar — America’s largest owner of local TV stations — announced that its channels would not carry Kimmel’s show. Nextar is currently seeking to buy one of its rivals for $6.2 billion, a deal that will require FCC approval.
The FCC does not have the authority to punish Kimmel’s speculation about Charlie Kirk’s assassin
Finally, contrary to Hemingway’s suggestion, it is not true that the FCC has the regulatory authority to punish broadcasters for airing speech like Kimmel’s.
The Commission does have the power to punish “broadcast hoaxes.” But these are defined as instances in which a broadcaster disseminates information that 1) it knows to be false and 2) foreseeably causes “direct” and immediate “public harm” — in the sense of “actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”
Kimmel’s remarks do not remotely fit this description. In his controversial aside, the comedian said, “We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them.”
Interpreted literally, Kimmel’s line is not even indisputably false. Kimmel technically did not assert that Kirk’s suspected killer was a conservative, only that the “MAGA gang” was desperate to counter that impression. Regardless, there is no evidence that Kimmel knew what he said to be untrue, nor that any immediate public harm resulted from his misleading comment.
Hypocrisy is not a justification for tyranny
Conservatives are not wrong to find some progressives’ advocacy for free speech hypocritical or opportunistic. Segments of the left really did embrace illiberal attitudes toward free expression in recent years and fought to punish the expression of legitimate (or even popular) points of view on college campuses and in the media.
The Biden administration’s efforts to counter COVID misinformation, meanwhile, arguably undermined First Amendment rights.
Yet a White House explicitly threatening to shut down adversarial broadcasts constitutes a greater assault on political liberty than anything that progressive activists or Joe Biden ever did. Left-wing hypocrisy does not justify right-wing tyranny. Those who suggest otherwise are confessing their contempt for constitutional rule.
