The First Amendment to the U.S. Constitution reads as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Americans all-too-frequently interpret this incorrectly to suggest that we can just say whatever we want, whenever we want, without any consequence. There are myriad examples in recent history—such as a case where someone tweets out something racist and then is fired by their private employer. The First Amendment provides no protection for that individual—it simply protects that individual from prosecution by a governmental body—whether municipal, state or federal.
Jimmy Kimmel can be held accountable by his employer for saying something that his bosses feel reflects the company in a negative light. A note on his bosses, because it’s complicated. Kimmel works for national network ABC, which is owned by Disney. Nexstar Media group owns a couple hundred local TV stations across the nation, including Denver’s Fox31. Nexstar doesn’t own Denver’s ABC affiliate, but it is about to purchase another major news station conglomerate, TEGNA, which owns Denver’s 9News, and the deal requires Federal Communications Commission (FCC) approval.
If Kimmel’s bosses feel he made their company look bad, they are of course free to fire him or at least shelve his show. That is both a legal and fairly common occurrence.
This is not what’s happening, however.
In this particular case, ABC/Disney/Nexstar is reacting to the “Chill Effect” of a perceived threat of retribution from a governmental body, namely the Trump Administration, his Department of Justice, and likely the FCC.
In the landmark Supreme Court case New York Times Co. v. Sullivan (1964), the chill effect of existing libel law was at the root of the case, and resulted in the court ruling that when it comes to a public official, a libel ruling must meet the existing standards of libel law that apply to private citizens, as well as meet the standards of demonstrating “actual malice” or “reckless disregard” of the truth. This is because the “chill effect” of fear of potential consequences was actually resulting in restricting the ability of journalists to do the important work of covering the stories related to our bodies of government. This was one of the most important rulings in American history as it applies to both freedom of speech and freedom of the press.
In the majority opinion decision on the case, SCOTUS Justice William Brennan wrote: “The opinion of the Court conclusively demonstrates the chilling effect of the Alabama libel laws on First Amendment freedoms in the area of race relations…This is not to say that the Constitution protects defamatory statements directed against the private conduct of a public official or private citizen. Freedom of press and of speech insures that government will respond to the will of the people and that changes may be obtained by peaceful means. Purely private defamation has little to do with the political ends of a self-governing society. The imposition of liability for private defamation does not abridge the freedom of public speech or any other freedom protected by the First Amendment. This, of course, cannot be said where public officials are concerned or where public matters are involved. One main function of the First Amendment is to ensure ample opportunity for the people to determine and resolve public issues. Where public matters are involved, the doubts should be resolved in favor of freedom of expression rather than against it.”
The Trump Administration has made no secret of its loathing of the Press and the administration’s interest in exerting control over what is said publicly that may contravene the interests of the Administration. Kimmel’s commentary in his opening monologue on Sept. 15 was very much focused on the administration, the FBI, and the GOP at large:
“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 and doing everything they can to score political points from it…In between the finger pointing there was grieving. On Friday, the White House flew the flags at half-staff, which got some criticism, but on a human level you can see how hard the President is taking this.” Then, Kimmel played a clip of Trump being asked how he has been holding up since the killing. POTUS responded: “I think very good,” and then immediately segued into discussing plans about his new White House ballroom. Then, the camera cut back to Kimmel, who said, “Yes, he’s at the fourth stage of grief—construction. This is not how an adult grieves the murder of someone he called a friend, this is how a 4-year-old mourns a goldfish. And it didn’t just happen once.” Kimmel then continued his monologue, mocking the Trump administration for appearing on Fox and Friends and using the opportunity to shift conversation away from Kirk to the Ballroom; Kimmel also made fun of Kash Patel (Director of the FBI) for his approach, and mocked Congresswoman Marjorie Taylor Greene for her comments requesting a “peaceful, national divorce from ‘the Left.'”
None of his commentary was aimed at Charlie Kirk. It was all aimed at the actions and rhetoric of officials in our federal government in their response to Kirk’s assassination.
This is PRECISELY what the First Amendment is designed to protect—commentary on elected officials and our various institutions of law enforcement and legislation. Trump has had NYT v. Sullivan in his sights since his first campaign in 2016, saying he wanted to expand libel laws to make it easier for him to sue those in the press who are critical of him. And he has at least a few allies in SCOTUS on his side, as SCOTUS Justices Clarence Thomas and Neil Gorsuch have pushed for reconsideration of the NYT v. Sullivan case.
The Kimmel situation is a clear and present example of a “chill effect” in practice, and is a violation of the First Amendment of the United States Constitution and The NYT v. Sullivan precedent. ABC/Disney/Nexstar is likely afraid of retribution from these institutions, suspending Kimmel indefinitely and taking the show off the air.
It’s important not to forget that Nexstar is in the middle of trying to buy TEGNA for more than $6 billion, and, as noted, this deal requires FCC approval. For those with a short memory, there’s already precedent for a big-money deal that needs FCC approval and resulting actions by companies involved that torpedoed another late night talk show — as we witnessed in the cancellation of Stephen Colbert’s The Late Show. In that situation, in an opening monologue, Colbert had criticized his own parent company’s settlement (which he called a “big, fat bribe”) with Donald Trump for $16 million over an interview that aired on 60 Minutes. Many believe (including the Writers Guild of America) that Paramount chose to settle so as not to jeopardize the then-pending merger of Paramount and Skydance Media (completed in August). Valuation puts the new Paramount Skydance Corporation at $28 Billion. The FCC approved the merger on July 24, 2025—exactly one week after Paramount announced the cancellation of The Late Show.
What we’re witnessing now is a full frontal assault on the First Amendment protections of the freedom of the press and the freedom of speech. What’s particularly alarming, however, is this is all happening outside of due process of law—this isn’t happening in the courts. It’s a result of the actions of mega corporations prostrating themselves at the altar of political exigency, motivated by nothing more than base greed. And while there are throngs of MAGA supporters applauding these attacks on perceived political rivals, the truth is as plain as the language of the First Amendment of the United States Constitution:
We are all in peril.
