Ted Cruz Is Right About Government Regulation of Speech

The FCC chair Brendan Carr is undermining the First Amendment

You may have heard that late-night TV talk show host Jimmy Kimmel was taken off the air after making some pretty dumb and factually inaccurate comments on September 15 about the assassination of Charlie Kirk. Although Kimmel will be back on the air tonight,¹ the affair raises questions about the role of the Federal Communications Commission (FCC) chairman, Brendan Carr, in Kimmel’s removal from the air.

During an appearance on a podcast hosted by a far-right influencer on September 17, Carr said, “In some quarters, there’s a very concerted effort to try to lie to the American people about the nature, as you indicate, of one of the most significant newsworthy public interest acts that we’ve seen in a long time. In what appears to be an action by Jimmy Kimmel to play into that narrative that this was somehow a MAGA or Republican motivated person.”

Carr isn’t wrong that some on the far-left have tried to reframe the narrative about Kirk’s killer as being someone who is part of the so-called “MAGA movement” or a “Groyper.”² Although the assassin reportedly comes from a Republican family, the assassin’s mother told law enforcement that he had “become more political and had started to lean more to the left, becoming more pro-gay and trans rights-oriented.”³

Carr used his time in the interview to bring up the public interest standard. He said, “What people don’t understand is that the broadcasters…are entirely different than people that use other forms of communication. They have a license granted by us at the FCC, and that comes with it an obligation to operate in the public interest. And we can get into some ways that we’ve been trying to reinvigorate the public interest and some changes that we’ve seen.”

Where Carr went too far was in the next breath when he said, “[F]rankly, when you see stuff like this, I mean, look, we can do this the easy way or the hard way. These companies can find ways to change conduct and take action on Kimmel, or there’s going to be additional work for the FCC ahead.” He later added, “I think what you said there strikes me as a very reasonable, minimal step that can be taken. I mean, obviously, look, there’s calls for Kimmel to be fired. I think, you know, you could certainly see a path forward for suspension over this, and, again, you know, the FCC is going to have remedies that we could look at.”

What do we make of all this? Sen. Ted Cruz (R-TX) was critical of Carr last week. He said, “I think it is unbelievably dangerous for government to put itself in the position of saying, ‘We’re going to decide what speech we like and what we don’t, and we’re going to threaten to take you off air if we don’t like what you’re saying.’” Cruz explained that the precedent being set now could be used against conservatives in the future by a Democratic administration.⁴ Sen. Todd Young (R-IN) agreed with Cruz. So did Sen. Mitch McConnell (R-KY).

Carr mentioned the public interest standard comes from the Communications Act of 1934. The law contains dozens of mentions of the phrase “public interest, convenience, and necessity.” However, “public interest” isn’t defined, and the FCC hasn’t prioritized clarifying its meaning.⁵ There was a time when it was used to justify content rules, such as the “Fairness Doctrine,”⁶ but the modern view of the public interest standard is far from how Carr sees it. Until a few years ago, the public interest standard meant merger reviews, ownership limits, localism, and a few other relatively mundane things.

It’s hard to separate Carr’s comments about Kimmel from Trump’s recent lawsuit against The New York Times⁷ to the threat toward ABC’s Jonathan Karl, when he told the reporter, “[Attorney General Pam Bondi would] probably go after people like you, because you treat me so unfairly. It’s hate. You have a lot of hate in your heart. Maybe I’ll come after ABC. Well, ABC paid me $16 million recently for a form of hate speech, right? Your company paid me $16 million for a form of hate speech, so maybe they’ll have to go after you. Look, we want everything to be fair. It hasn’t been fair, and the radical left has done tremendous damage to the country, but we’re fixing it.”⁸ While sitting in the Oval Office just a few days ago, Trump complained about negative coverage of his administration and tied it to the use of airwaves by broadcasters. He said, “They’ll take a great story, and they’ll make it bad. See, I think that’s really illegal, personally.”

Meanwhile, Carr seems to have now set his sights on ABC’s The View, which, he alleges, may not be a “bona fide newscast” and, thus, may violate the Communications Act’s “equal time rule.” This rule requires broadcasters to give equal time to candidates for political office. The White House, in July, criticized one of the hosts, Joy Behar, over her criticism of Trump.

Ultimately, if Carr pushes this too far—which he appears to be actively doing—he may find himself on the opposite end of a majority of the Supreme Court. In National Rifle Association v. Vullo (2024), the Court unanimously determined, “To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress speech.”

In other words, Carr engaged in exactly the conduct that the Court admonished in Vullo. By saying “we can do this the easy way or the hard way” and not-so-subtly suggesting action by the FCC is jawboning and part of an apparent pattern by the Trump administration to undermine the freedom of the press under the First Amendment.

Letting this play out in the courts is also not the appropriate way to handle it. Congress has the power of oversight, the power of the purse, and can hold appointees accountable. Pursuing these congressional remedies is the best way to approach Carr’s pretty blatant abuse of power and disregard for a foundational protected right.

1. Kimmel won’t appear on stations owned by Sinclair Broadcast Group or Nexstar Media Group when he returns. Sinclair is known for its conservative slant. Nexstar is in the process of acquiring TEGNA, Inc., which is pending approval from the Federal Communications Commission, the Federal Trade Commission, and the Department of Justice.

2. There’s some crazy stuff coming from the far-right, too, such as the conspiracy theory that Israel was behind the assassination. Just insane stuff.

3. I feel the need to be clear here that I’m a supporter of the LGBTQ+ community. I also reject political violence.

4. I’ve repeatedly said that every president views the power of his predecessor as a floor, not a ceiling. Everything Trump is doing now will be abused by a future administration if Congress doesn’t step up to constrain executive power.

5. As an aside, it’s worth noting that the overturning of the Chevron deference in Loper Bright v. Raimondo (2024) means that federal courts no longer required to defer to agency interpretations of statutes.

6. To sum it up, the Fairness Doctrine was a content rule that required broadcasters to present both sides of an issue. The FCC implemented it in 1949 and ended it in 1987. In August 2011, the FCC formally ended the Fairness Doctrine by repealing the rule that implemented it, at the urging of congressional Republicans.

7. Trump’s lawsuit against the Times was dismissed, at least for now, as “decidedly improper and impermissible” because it violated Rule 8 of the Federal Rules of Civil Procedure. U.S. District Judge Steven Merryday wrote, “As every lawyer knows (or is presumed to know), a complaint is not a public forum for vituperation and invective — not a protected platform to rage against an adversary. A complaint is not a megaphone for public relations or a podium for a passionate oration at a political rally or the functional equivalent of the Hyde Park Speakers’ Corner.” Merryday gave Trump 28 days to amend the complaint.

8. The full quote is provided for context. The $16 million payment Trump mentions was a settlement in the defamation case Trump brought against ABC regarding comments made by This Week achor George Stephanopoulos. The difference between defamation and hate speech is that the former isn’t protected by the First Amendment. The latter is. Additionally, there’s a difference between hate speech and incitement. Incitement isn’t protected speech. What is or isn’t considered incitement is covered by the two elements of Brandenburg test.