NYCLA Rule of Law Task Force on Free Speech and Free Press Defense

On Wednesday, September 17, 2025, the ABC television network indefinitely suspended airings of the Jimmy Kimmel Live show. ABC’s decision came after the Chair of the Federal Communications Commission had criticized Mr. Kimmel for making comments concerning the murder of Charlie Kirk that the FCC Chair claimed were “offensive.”  Although ostensibly an independent agency, the FCC Chair’s comments followed the President’s repeated threats to punish broadcasters, comedians, and members of the press, whose statements the President claimed were offensive. Even though Mr. Kimmel’s suspension ended on the evening of Tuesday, September 23, 2025, the return of his TV show immediately prompted the President to threaten to sue ABC again.

These government actions and threats put at risk one of the most fundamental rights, freedoms, and liberties guaranteed by our Constitution — our right to freedom of speech under the First Amendment. The Rule of Law Task Force of the New York County Lawyers Association believes that all such government assaults on our right to speak freely pose a grave danger to the Rule of Law, and we condemn those threats.

The United States Supreme Court has repeatedly recognized the importance of the right to free speech. In the opinion written by Justice William J. Brennan, Jr. , the Supreme Court declared: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  Texas. v. Johnson, 491 U.S. 397, 414 (1989).

The Supreme Court stated only last year in a unanimous opinion written by Justice Sonia Sotomayor in NRA of Am. v. Vullo, 602 US 175, 180 (2024):

Six decades ago, this Court held that a government entity’s “threat of invoking legal sanctions and other means of coercion” against a third party “to achieve the suppression” of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 67 (1963). Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.

Thus, it is fundamental that the government has no authority to punish statements about Charlie Kirk’s death that it claims are “offensive”.  And, as a result, the FCC Chair, using the power of a government agency, had no right to threaten ABC or its affiliates to take Mr. Kimmel off the air for any such statements.  There are also reports that the Administration pressed the owner of the CBS network to terminate Stephen Colbert’s show. Mr. Colbert, like Mr. Kimmel, is a late-night satirical comic, who criticized a settlement the CBS network had reached with the President, which occurred at the same time the FCC was considering approval of a CBS business merger.

Our First Amendment rights, freedoms, and liberties serve a very basic and practical purpose. As Chief Justice Charles Evans Hughes wrote for the Supreme Court in Stromberg v. California, 283 U.S. 359, 369 (1931):

The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.

History shows that authoritarian regimes throughout the world crack down on media companies, such as broadcasters, to limit dissent. This is how they may limit opportunities for any criticism of government, including satire by broadcast comedians. Against that model, here in the United States we treasure our First Amendment rights, freedoms, and liberties as a way to preserve dissent within and without politics. In 1943, the Supreme Court stated in an opinion written by Justice Robert H. Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943):

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

We urge everyone who is committed to the Rule of Law to join us in supporting the free expression of opinions, even those opinions that we, or governmental actors at any given time, may deem “offensive”.

About the New York County Lawyers Association
The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion, or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.

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