Donald Trump and his earlobe nibbler (FCC boss Brendan Carr) are threatening to try and censor some more comedians after their efforts to cancel Jimmy Kimmel went so well (read: not well at all).
Over at the right wing white propaganda website formerly known as Twitter, Brendan Carr retweeted some whining from Donald Trump calling for the termination of late night comedian, Seth Meyers. In the tweet, Trump calls for NBC (which is hoping to gain Trump regulatory approval for an acquisition of Warner Brothers) to fire Meyers immediately for the criminal offense of… jokes:
That’s Carr posting a screenshot of Donald Trump posting to Truth Social:
NBC’s Seth Meyers is suffering from an incurable case of Trump Derangement Syndrome (TDS). He was viewed last night in an uncontrollable rage, likely due to the fact that his “show” is a Ratings DISASTER. Aside from everything else, Meyers has no talent, and NBC should fire him, IMMEDIATELY!
Also, the weird thing is that Trump posted on November 15th that he viewed Meyers “last night,” which is impressive since Meyers’ didn’t even have a new show airing on the 14th.
So it’s certainly possible that NBC executives could fire Seth Meyers in order to gain regulatory approval of Warner Brothers, but they, of course, won’t admit there would be any connection between the two. But even then, it would be quite a gambit with Trump’s popularity cratering.
So if they’re keen on making Seth Meyers more popular than ever, they should definitely proceed.
The great irony is it’s not like the comedians that most rile the president are even particularly edgy or boundary pushing in literally any way. Most of the stuff that deeply riles our toddler king is pretty basic observational late night comedy. Which makes you wonder how Trump would respond to modern U.S. comedy if it actually had some George Carlin, Richard Pryor, or Lenny Bruce style teeth.
Outside of a smattering of light criticism of hackish “anti-woke” comedians by the likes of Anthony Jeselnik, Marc Maron, and the Elephant Graveyard guy, U.S. comedy — much like U.S. media more broadly — has been a feckless mess when it comes to challenging authoritarianism. Which is unfortunate given how even the lightest mainstream jokes about their competency clearly gets under their very thin skin.
You might recall that right wing propaganda broadcaster Sinclair Broadcasting recently tripped over its own ass after working with the Trump administration to try and censor Jimmy Kimmel for criticizing the President. The flood of outrage at the Disney/FCC/ABC collaborative effort ultimately forced the company to retreat and put Kimmel back on the air.
Even after ABC retreated, Sinclair tried to push its luck and extend the “pre-emption,” but ultimately buckled and got absolutely none of what it asked for (including an apology from Kimmel for doing nothing wrong). Now Sinclair Broadcasting’s latest earnings reports indicate that things aren’t going well for the company, which posted a 16 percent quarterly loss.
“It’s not clear the extent to which the Kimmel boycott affected Sinclair’s financial results for the quarter; the company did not provide any discussion of the blackout in its earnings press release and the topic did not come up on the call with analysts.”
Most companies carefully screen what kind of journalists are allowed on earnings conference calls, and then screen questions ahead of time so executives don’t have to deal with uncomfortable realities like: “it’s not good business to be weird partisan zealots who engage in censorship of comedians because they made a mild joke about your mad, idiot king.”
“On the earnings call, Sinclair president and CEO Chris Ripley noted that Sinclair’s ABC stations are currently affected by the Disney-YouTube TV dispute, which has resulted in a blackout of ABC, as well as ESPN and other networks, on YouTube TV since last Friday. Sinclair has 38 ABC affiliates. He blasted both both Google and Disney for the situation, calling them “media giants,” and said local broadcasters are “caught in the middle” of such disputes — which he labeled an “antitrust issue.”
All out of fresh ideas on how to grow its business organically, Ripley is pushing hard for the Trump administration to destroy whatever is left of media consolidation limits so Sinclair can ultimately merge with Tegna and Nexstar and create one big, shitty, right wing company to dominate whatever is left of U.S. local broadcasting.
They want government handcuffed and completely out of their hair when it’s inconveniently preventing them from harming competition and consumers through consolidation and predatory behavior, but then to step in, competently, when it suits their interests. That generally doesn’t work out well for anybody.
Disney’s decision to temporarily ban comedian Jimmy Kimmel for no coherent reason came with some very real costs for the Mickey Mouse club. According to journalist Marisa Kabas, Disney lost an estimated 1.7 million subscribers across Hulu, ESPN, and Disney+ due to public backlash and cancellations.
SCOOP / UPDATE — Disney saw more than 1.7 million total paid streaming cancelations during the period 9/17-9/23, a Disney source confirms to me. The total includes Disney+, Hulu and ESPN.
Disney and ABC, hand in hand with right wing broadcast affiliates, recently tried to appease our dim authoritarian king by putting his least favorite comedian on hiatus. The claim was that Kimmel had said something insensitive about the the killing of right wing race-baiting propagandist Charlie Kirk; the real reason is the companies are lobbying Trump to eliminate the last remaining media consolidation limits.
Meanwhile Disney, like most major streaming companies, can’t help but descend down the rabbit hole of enshittification. With streaming growth saturating and streaming executives fresh out of any sort of innovation or new ideas, major media companies are looking to cut corners, embrace more pointless mergers, raise prices, and otherwise nickel-and-dime existing customers to goose stock valuations.
That’s not just included higher prices, but a steady erosion in popular feature set and an unpopular crackdown on things like parents sharing their passwords with their college kids, which the industry supported for years to goose market share.
The result is creating a streaming TV industry that’s looking increasingly like the traditional cable giants they once disrupted. Disney had already been struggling with streaming defections due to a series of relentless price hikes. The company lost 700k subscribers earlier this year due to hikes; and recently imposed another wave of hikes that made them particularly sensitive to the Kimmel backlash.
Disney’s parent company ABC is particularly keen to eliminate media consolidation limits that prevent the big four networks (ABC, CBS, NBC, and FOX) from merging, an ask past administrations wisely refused. The things customers really want (lower prices, better programming, improved feature set, better customer service) erode stock prices, while mergers goose earnings and create tax breaks.
But helping authoritarian assholes trample the First Amendment clearly came with some real-world challenges feckless Disney executives were simply too dim to consider. And if recent history holds, they’ll learn absolutely nothing whatsoever from the experience.
There’s a bit of a trend emerging: when you decide to stand up and fight against Donald Trump and his parade of dim authoritarian sycophants, you usually win. If you fecklessly fold (like CBS, Meta, Columbia, and countless others), these annoying assholes just keep pushing you harder for concessions.
That’s certainly the lesson from ABC’s effort to ban Jimmy Kimmel for no good reason.
The flood of public outrage at the Disney/FCC suspension of Jimmy Kimmel ultimately forced the company to retreat and put Kimmel back on the air. Disney apparently didn’t much like the wave of folks cancelling their Disney+ streaming video subscriptions in response to the government and a major corporation coordinating a frontal assault on the First Amendment.
And while local right wing broadcast affiliates Nexstar and Sinclair tried to impose their will and extend the ban, that didn’t work out well either. Both companies continued to “pre-empt” Kimmel last week with reruns and game shows, but announced on Friday they’d be returning his program to the air after annoyed locals had some success convincing advertisers to pull their funding.
Both companies were hoping to curry favor with the Trump administration, which is planning to eliminate the country’s remaining media consolidation limits and rubber stamp another round of mergers that will make U.S. local broadcast journalism worse than ever. And while both companies may have convinced Donald they’re very obedient poodles, their efforts clearly came with a public cost.
In internal memos and public statements, both companies tried to insist they were simply trying to protect local communities from dangerous comedians despite the fact Kimmel said absolutely nothing remotely controversial. Sinclair put it this way in a statement issued last Friday:
“Our objective throughout this process has been to ensure that programming remains accurate and engaging for the widest possible audience. We take seriously our responsibility as local broadcasters to provide programming that serves the interests of our communities, while also honoring our obligations to air national network programming.
…As a company rooted in local stations, Sinclair remains committed to serving our communities with programming that reflects their priorities, earns their trust, and promotes constructive dialogue.”
This line of bullshit is particularly amusing given Sinclair’s history of airing everything from dangerous election fraud conspiracy theories to dangerous right wing medical disinformation. That’s stuff that really does harm the local communities they “serve,” but because it’s in line with management’s radical right wing ideology, it apparently gets a pass.
Sinclair then proceeds to pretend that this had nothing to do with government censorship, insisting they’d decided to engage in stupid behavior all on their own:
“Our decision to preempt this program was independent of any government interaction or influence. Free speech provides broadcasters with the right to exercise judgment as to the content on their local stations. While we understand that not everyone will agree with our decisions about programming, it is simply inconsistent to champion free speech while demanding that broadcasters air specific content.”
This too is amusing, given that all of the major broadcasters, Sinclair, Nexstar, and Tegna, are all pushing the Trump administration to let them merge into one even bigger, shittier, company. Similarly the big four networks (ABC, FOX, CBS, NBC) have been lobbying the Trump administration to eliminate other protections banning mergers among media’s biggest companies.
Trump FCC boss Brendan Carr clearly was (once again) abusing his agency’s merger approval authority to bully companies into doing the administration’s bidding if they want their mergers approved, which is illegal censorship and a trampling of the First Amendment regardless of whether Sinclair and Nexstar executives are feckless dipshits who were enthusiastic about the whole thing.
Brendan Carr had been hinting for months before the Kimmel ban that one of his top priorities would be to strengthen local right wing broadcasters trying to dress up right wing propaganda as journalism. Both by rubber stamping their harmful mergers, and by giving them greater government support in their battles for concessions with their nationwide affiliate partners.
Carr clearly saw the Kimmel situation as an opportunity to test the waters. It went… poorly, with Carr and the agency receiving massive, unprecedented public backlash from Republicans and Democrats alike. Carr’s now making the rounds trying to lie about what happened, hoping to fend off several fledgling investigations into his clearly illegal abuse of FCC power and waste of taxpayer resources.
We’ve repeated over and over again that anyone who believes Donald Trump’s claims of supporting free speech is either a brainwashed cultist or the dumbest person alive. And now, in his doddering old age, he’s becoming ever more brazen and belligerent in his attacks on speech. He’s not even trying to put forth a veneer of legitimacy anymore.
Last week, his FCC chair, Brendan Carr, went on a MAGA influencer’s podcast and clearly and obviously threatened both Disney and local ABC affiliates to punish Jimmy Kimmel for his speech. The affiliates (many of whom are trying to get FCC approval for consolidation mergers) got the message and pre-empted their showing of Kimmel’s show, leading Disney to temporarily suspend the show. After the public started canceling their Disney+ accounts in droves, Disney flipped its position and allowed Kimmel to come back last night (with a bang).
And, now facing bipartisan pressure for acting like a censorial bitch, Brendan Carr is trying to doublespeak his way out of what he said last week, insisting that of course he wasn’t abusing his power to punish Kimmel’s speech, a claim that I’m pretty sure exactly no one (including Brendan Carr) believes.
But, even if we wanted to take Carr at his word, his boss, Donald Trump, is not helping matters. Just as Kimmel was about to go back on the air, he posted this to his Unsocial Liars Truth Social site:
That is… [checks notes… checks notes again because surely that can’t be… well… okay] the President of these United States saying:
I can’t believe ABC Fake News gave Jimmy Kimmel his job back. The White House was told by ABC that his Show was cancelled! Something happened between then and now because his audience is GONE, and his “talent” was never there. Why would they want someone back who does so poorly, who’s not funny, and who puts the Network in jeopardy by playing 99% positive Democrat GARBAGE. He is yet another arm of the DNC and, to the best of my knowledge, that would be a major Illegal Campaign Contribution. I think we’re going to test ABC out on this. Let’s see how we do. Last time I went after them, they gave me $16 Million Dollars. This one sounds even more lucrative. A true bunch of losers! Let Jimmy Kimmel rot in his bad Ratings.
I mean, what do you even say anymore other than the man is the most censorial, anti-free speech President to hold the office in at least a century and probably more?
First, he’s admitting that the White House talked to Disney about Kimmel’s show, which is, if I remember correctly from all the MAGA whining during the Murthy v. Missouri case, absolutely verboten under the First Amendment.
Second, if it’s true that he had no audience and no talent, then… why would the FCC and Trump need to weigh in at all? It’s obvious he does have an audience and talent given that he has over 20 million subscribers on YouTube and the video from last night is over 15 million views in less than a day as I write this and will surely pass 20 million before too long.
Third, more seriously, the claim that Trump is going to sue over something wholly unrelated to what Carr was threatening an investigation over shows that this has nothing to do with any particular comment or with Kimmel’s ratings or popularity. It is, clearly, our most thin-skinned, can’t-take-a-joke, whiny, insecure, pathetic excuse of a President demanding that the guy making fun of him be silenced.
It’s not worth going into the details but, no, a late night TV host comic making jokes about the President is not, in any way, an “illegal campaign contribution.” That’s not how any of this works.
As for the $16 million payout for the “last time I went after them” that should reveal what bullshit all this is. Trump filed a very, very questionable defamation lawsuit against ABC over a minor technical misstatement by George Stephanopoulos, which the company caved on and decided to pay a settlement fee on (just like a few other media and tech companies in the last year) in the hopes of staying in Trump’s good graces.
But as we’ve said over and over again, when you appease bullies, they don’t go away. You just are asking for more bullying and more demands. Disney/ABC should have known that from the start, but here we are. Trump is basically demanding a payout as punishment because Jimmy Kimmel makes fun of him.
If Disney’s Bob Iger had any principles or any backbone at all, he’d do exactly what John Oliver told him to do earlier this week. Go back to the White House with “Fuck you, make me.”
Now Carr is busy making the rounds, doing damage control and trying to pretend he did nothing wrong. At the Concordia Summit this week, Carr lied and claimed that his effort to cancel Kimmel, opposed by Republicans and Democrats alike, was some sort of Democratic fabrication:
“There’s a lot of Democrats out there that are engaged in a campaign of projection and distortion. The distortion is they’re completely misrepresenting the work of the FCC and what we’ve been doing. I saw there’s a letter from some Senate Democrats that said the FCC threatened to revoke the license of Disney and ABC if they didn’t fire Jimmy Kimmel, and that did not happen in any way, shape, or form.”
The letter that got Carr’s attention was the letter three House Representatives sent to FCC Inspector General Fara Damelin, urging her to do her fucking job given Carr’s radical behaviors not only violate the law and FCC rules, they’re wasting huge sums of agency resources (weird for an FCC boss who simply can’t shut up about his quest for agency efficiency, at least as it pertains to consumer protections).
Like most law-trampling authoritarians, Carr has concocted paper thin legal justifications for Trump’s free speech violations, demolition of consumer protections, and other unpopular policies. Legal justifications that would be shredded easily if the Democratic party, major institutions, and prominent media giants (like CBS and ABC) had the faintest hint of any ethical backbone.
For example when Carr abused the FCC merger approval process to demand Verizon to be more sexist and racist — he made the legally incoherent claim that the company’s bare-bones inclusivity efforts ran afoul of the Communication Act’s discrimination language and were somehow discriminatory against white people. That’s absolute fucking gibberish by any standard.
Carr’s offered up similarly flimsy justifications for his destruction of FCC efforts to address longstanding racism in U.S. fiber broadband deployment, despite the fact that the Trump administration’s destruction of the Digital Equity Act (a law passed by Congress mandating the FCC take action on long-proven discrimination in broadband deployment and pricing) was illegal.
And here, Carr is desperately trying to pretend that the pressure he clearly applied on ABC affiliates to trample free speech were all about his desperate love of “local community”:
“What I’ve been very clear in the context of the Kimmel episode is the FCC, and myself in particular, have expressed no view on the ultimate merits had something like that been filed, what our take would be one way or the other. But one of the things we’re trying to do as a general matter at the FCC is to empower local TV stations to serve the needs of the local communities.”
This feigned love of local communities here is particularly obnoxious given his plans to rubber stamp a massive wave of new local media consolidation, the likes of which has already decimated quality local broadcast TV journalism in the U.S. And because of his efforts to destroy federal consumer protection, leaving those locals at the whims of shitty robocallers, predatory telecom giants, and regional monopolies like Comcast.
Like most of the pudding-brained sycophants in Donald Trump’s orbit, Brendan Carr will say or do literally anything to try and support whatever shitty, radical, or unpopular idea that pops into Donald Trump’s head on any given day. And because major U.S. institutions and corporations are so corrupt and feckless, it’s been relatively easy for him, so far, to leverage the thinnest fucking legal justifications imaginable.
In the case of Kimmel, Carr repeatedly levied direct, obvious threats against broadcasters who air criticism of President Trump with statements like “we can do this the easy way or the hard way.” He directly demanded that Disney “take action” on Kimmel “or there’s going to be additional work for the FCC ahead.” His comments have been clearly construed as illegal, dangerous threats by Democrats and Republicans alike.
Just last week Carr went on the podcast of right wing fake journalist Benny Johnson to directly spell out his plan to pressure ABC broadcast affiliates into taking a giant, steaming dump on the First Amendment:
“There’s actions we can take on licensed broadcasters and, frankly, I think it’s past time that a lot of these licensed broadcasters themselves push back on [NBC owner] Comcast and Disney and say, “Listen, we are going to preempt, we are not going to run Kimmel anymore until you straighten this out because we, the licensed broadcaster, are running the possibility of fines or license revocations from the FCC if we continue to run content that ends up being a pattern of news distortion.” Disney needs to see some change here, but the individual licensed stations that are taking their content, it’s time for them to step up and say this garbage isn’t something that we think serves the needs of our local communities.”
In short, he told Disney and its local broadcast affiliates to censor a comedian critical of the President and then pretend it was some sort of community service to do so. That’s still illegal, regardless of whether Carr tries to dress the censorship up as helpful for rural Americans. Recall that while ABC itself has backed off the Kimmel suspension, local right wing broadcast affiliates are still “pre-empting” him.
You never really get any sense that Brendan Carr, the man, actually believes in much of anything beyond his own career opportunities within the soggy ranks of the MAGA kakistocracy. His “beliefs” (like his dedication to a TikTok ban, or his past adoration of the First Amendment) ebb and flow depending on the whims of our mad, idiot king. And like most of Trumpism, he’s incapable of introspection and will clearly take all the wrong lessons from Kimmel’s return, ensuring more dangerous, bad decisions to come.
Since we know that FCC Chair Brendan Carr sometimes reads what we write here at BestNetTech, I figured I’d post this one just for him and hopes that he watches it, seeing as we know that, thanks to his own mafioso-like tactics, his good friends at Sinclair Broadcasting (along with Nexstar) refused to show Jimmy Kimmel’s show last night in Washington DC where Carr lives and works. You sure missed a good opening monologue. So I figured I’d help him out by making sure it got as widely seen as possible.
The flood of outrage at the Disney/FCC cancellation of Jimmy Kimmel ultimately forced the company to retreat and put Kimmel back on the air. Disney apparently didn’t much like the wave of folks cancelling their Disney+ streaming video subscriptions in response to the government and a major corporation coordinating a frontal assault on the First Amendment.
Some insiders at Disney indicated that Disney had a planned Disney+ price hike coming this week, and executives worried the backlash to both was going to cause significant financial harm to their quarterly numbers, as revealed by independent journalist Marisa Kabas.
SCOOP — Part of the reason Disney/ABC may have rushed to sort things out with Kimmel is because tomorrow they have a planned price increase for Disney+ streaming, a Disney source tells me. With subscriptions hemorrhaging since last week, they couldn’t risk losing more users with this announcement.
Indeed, on Tuesday morning the price hike was confirmed.
Local ABC broadcast affiliate owner Sinclair Broadcasting, however, appears intent on pushing its luck. We’ve long pointed out how the right wing broadcaster is basically GOP propaganda pretending to be local news. The company has an extended history of kissing Trump’s ass, airing all kinds of pro-Trump propaganda (the company’s infamous “must run” segments), and is often cozy with white nationalists.
“Beginning Tuesday night, Sinclair will be preempting Jimmy Kimmel Live! across our ABC affiliate stations and replacing it with news programming. Discussions with ABC are ongoing as we evaluate the show’s potential return.”
Soon after Sinclair’s announcement, Nexstar followed suit and said it would also not show Kimmel’s show despite the high ratings it was guaranteed to get last night.
Sinclair owns 39 ABC-affiliated stations across the country, including WJLA-TV in Washington, D.C. The company, along with the nation’s other major right wing local broadcaster, Nexstar, originally demanded Kimmel issue an apology (for doing nothing really wrong), and donate to Charlie Kirk’s right wing outreach (and dim college kid disinformation project), Turning Point USA.
Nexstar is pushing for Trump FCC approval of a $6.2 billion deal merger with Tegna, which is part of a massive new wave of harmful media consolidation under Trump 2.0. The Kimmel saga began when FCC boss Brendan Carr, once again abused the agency’s regulatory approval powers to convince Sinclair and Nexstar that pre-empting Kimmel for criticizing the President would be in their best interests.
That’s clearly an illegal government effort to cancel free speech, and Disney has paid the price already. The censorship effort saw widespread, bipartisan backlash, including (somewhat surprisingly) from the likes of Senators Ted Cruz and Mitch McConnell, and former Fox News propagandist Tucker Carlson. They’re at least aware enough to know that this sort of abuse of government power could inevitably be turned against them.
Sinclair likely still believes that pushing its luck and continuing to “pre-empt” Kimmel gives them additional leeway within the Trump administration, cements their power in the right wing propaganda ecosystem, and makes merger approval more likely. But that’s going to come with an obvious ratings cost, and any costs incurred by those identifying Sinclair stations and contacting their advertisers to complain in the weeks to come:
Ultimately Sinclair and Nexstar may get more harmful media consolidation approved, but it’s likely going to be more trouble than it was worth. The MAGA set clearly thinks they can exploit Charlie Kirk’s death to escalate their war on their ideological enemies, but having been pickled in their own propaganda, one gets the sense they’re really not tuned into how violently unpopular their “movement” is becoming (something set to get worse as the impacts of things like tariffs, the elimination of all corporate oversight, and the evisceration of the social safety net begin to arrive in concussive waves).
Meanwhile, local broadcast television was also already seeing steady viewership declines as their mostly older audience dies off; advertising yourself as a bunch of weird censorial zealots engaged in fake journalism in service to an unpopular idiot king isn’t likely to help the company make inroads with a younger target demographic essential for the company’s longer term survival.
Trump supporters cycled through increasingly desperate explanations for why the Jimmy Kimmel situation was totally legitimate. First came the absurd “low ratings” defense—because sure, networks routinely cancel shows minutes before taping due to sudden ratings revelations and just hours after the chair of the FCC threatens them with “we can do this the easy way or the hard way.” And also, if it was low ratings, how do you explain why they brought the show back after less than a week? When that collapsed under basic scrutiny, they pivoted to something even more dishonest: claiming Brendan Carr’s explicit threats to Disney are somehow identical to what the Biden administration did, and falsely claiming this makes hypocrites of those who agreed with the ruling in Murthy v. Missouri.
This false equivalency isn’t just wrong—it’s embarrassingly so. But since MAGA supporters are now running with it (and some mainstream outlets are credulously repeating it), it’s worth demolishing the argument piece by piece. Of course, the people pushing this narrative won’t bother with the details and will immediately skip to the comments to shout “you lie!” without addressing the actual points raised here as to why they’re wrong, but for everyone else, let’s dig in.
You can see some of this nonsense in a NY Times article over the weekend by Peter Baker, in which a White House spokesperson claimed (falsely) that (1) Trump supported free speech, and (2) Biden censored social media:
Asked about the disparate justifications offered by Mr. Trump and administration officials, Abigail Jackson, a White House spokeswoman, said, “President Trump is a strong supporter of free speech, and he is right — F.C.C. licensed stations have long been required to follow basic standards.” She added that “the Biden administration actually attacked free speech by demanding social media companies take Americans’ posts down.”
Vice President JD Vance likewise pointed to allegations of censorship lodged against President Joseph R. Biden Jr. to defend the Trump administration’s actions. “The bellyaching from the left over ‘free speech’ after the Biden years fools precisely no one,”he wrote on social mediaon Friday.
That NY Times article was even worse originally, as there was a quote from so-called “presidential historian” Craig Shirley claiming (falsely) that “President Biden” forced social media companies to deplatform Donald Trump in 2021:
It says something about Trump’s all-out war on free speech that the New York Times couldn’t find a more credible person than “presidential historian” Craig Shirley to defend it. www.nytimes.com/2025/09/21/u…
Craig Shirley, a presidential historian and biographer of President Ronald Reagan, said Mr. Trump’s experience was so searing that he did not believe the president would improperly restrain others’ free speech, whatever his public exhortations.
“We all especially know Biden used government to censor Trump, kicking him off many media platforms, a clear violation of the law,” Mr. Shirley said. “As his own First Amendment rights were abridged, my guess is he’s especially sensitive to anyone else seeing their First Amendment rights taken away.”
Except that’s just factually wrong, as even a basic understanding of linear time (let alone a simple fact check) would have determined. Donald Trump was banned from most platforms on January 7th and 8th in 2021. When DONALD TRUMP WAS PRESIDENT, not Joe Biden. It was literally impossible for Biden to “censor Trump” at the time. Indeed, when it happened we wrote an article about why this clearly was not censorship, but a difficult choice private companies had to make about encouraging safety. You know, like how the MAGA crowd is now demanding that platforms silence anyone who speaks ill of Charlie Kirk.
The Times later quietly removed the first half of Shirley’s quote without noting the correction—a telling admission that even they recognized how factually bankrupt it was. Beyond the basic chronological impossibility, the entire premise is absurd: Trump was deplatformed by private companies exercising their own editorial judgment in the days after he had actively encouraged the storming of the US Capitol in an effort to prevent the peaceful handover of power… not government coercion.
That said, this idea that Biden “censored” people on social media keeps making the rounds, and in particular some have been arguing that the Supreme Court said that this was okay in Murthy vs. Missouri, and are then claiming that people who supported the administration in that case have nothing to complain about. Here are a few examples:
All three of those tweets are just factually incorrect in embarrassing ways. Many people have pointed out to them in the replies (correctly) that the Supreme Court’s ruling in Murthy was about standing, not the merits, but that’s not even what’s so egregious here.
The more important thing is the reason why the Murthy ruling was about standing, which was that the Supreme Court correctly found that none of the plaintiffs in the original case presented enough evidence to suggest they have standing to challenge the administration’s actions. Five times in the ruling, Justice Amy Coney Barrett mentions “no evidence.”
The clear implication, which all these people pointing to Murthy are missing, is that if they had actual evidence of coercion by government officials then they would have had standing. Nothing (literally nothing) in the Murthy case “blesses” or “supports” the idea that it’s okay for government officials to coerce intermediaries into silencing speech. It just says you can’t just claim that happened without any evidence to back it up.
At no point did the ruling condone government pressure on intermediaries to silence speech. Quite the contrary. Rather, the ruling in Murthy (and also confirmed a few weeks earlier in the Vullo ruling, which was heard on the same day as Murthy, so clearly both issues were on the Justices’ minds) was:
No, the government cannot coerceintermediaries to suppress speech that is protected by the First Amendment
But if an intermediary suppresses your speech as a private entity, to have standing, you need to show that it was actually in response to government pressure and you can’t just handwave that away.
To understand this, it really helps to read Vullo and Murthy together (again, remembering that the two cases were effectively heard together). We quoted from Vullo a lot in our first post, but as a refresher, from the opinion:
A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others.What she cannot do, however, is use the power of the State to punish or suppress disfavored expression….
This is the core distinction that bad faith readers of what happened keep ignoring. There is a fundamental difference between using the bully pulpit to persuade and using the power of the government with threats to punish in a manner that is coercive.
The Supreme Court in Vullo and Murthy made it clear that government coercion is not allowed. The people claiming Murthy said otherwise either didn’t read or understand Murthy, or they’re bad faith liars.
While the Murthy ruling rejected the plaintiffs’ claims, at no point did it say it made it okay for government actors to make coercive threats. It said the opposite. Indeed, contrary to the various tweets saying Murthy blessed what Carr was doing, it says that if you can show actual coercion from a specific government actor, then you have standing to make a case. From the majority decision:
But we must confirm that each Government defendant continues to engage in the challenged conduct, which is “coercion” and “significant encouragement,” not mere “communication.”
Carr’s actions provide a textbook example of the coercion that Murthy and Vullo prohibit. He went on a podcast, explicitly threatened a media company with regulatory retaliation (“we can do this the easy way or the hard way”), and hours later that company folded. The “traceability” that the Murthy court said was missing from the Biden administration’s communications? Here it’s a straight line drawn in neon by Carr in public with him yelling to the cameras “I AM ENGAGING IN COERCIVE ACTIVITY.”
This failure to establish traceability for past harms— which can serve as evidence of expected future harm—“substantially undermines [the plaintiffs’] standing theory.”
But here there’s very clear “traceability.” Carr went on a MAGA influencer’s podcast in the morning, said “we can do this the easy way or the hard way,” and specifically said that the FCC would investigate both Disney and affiliates if they didn’t take action over Kimmel’s First Amendment protected speech. Under Murthy that very much violates the First Amendment, not the other way around.
And this is only reinforced by the ruling in Vullo, which was more explicit:
The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech.
So people trying to argue that Murthy made this okay, or even that people who supported Murthy are now regretting it, are simply ignorant or lying. Neither is a good look for professional commentators.
Murthy (and Vullo) supported the long-held understanding that, under the First Amendment, government actors cannot threaten intermediaries in a coercive manner to get them to suppress or punish protected speech. Carr did threaten intermediaries to punish such speech, and thus it is entirely consistent with the ruling in Murthy that he violated the First Amendment.
Updating the updating: I started writing this post last Tuesday, but put it on hold when everything happened last Wednesday, and rewrote it this weekend to post today, only now as I was getting ready to post it, seeing that Disney has reinstated Jimmy Kimmel, so… yeah. I’m only making a minor update to deal with that new bit of info, as this is mostly the post I had written this weekend.
So, last Monday, there was some news about Jimmy Kimmel and a famously untruthful Republican politician. So I started to write a blog post about it. Monday. I know, I know, you’re thinking of what happened on Wednesday, in which Donald Trump’s FCC chair Brendan Carr violated the First Amendment and issued threats to Disney and its affiliates if they didn’t punish Jimmy Kimmel for his mocking of Donald Trump*.
* Sure, they claimed it was about what he said about Charlie Kirk’s killer, but no one actually believes that—and it’s hilarious now to see a bunch of silly people, including Trump try to retcon that the dismissal has anything to do with Kimmel’s popularity, when they literally pulled the show off air while he was in his studio to tape, and just hours after Carr’s threat, and now that Kimmel is going back on the air less than a week later it’s double clear it has nothing to do with Kimmel’s popularity.
But that Monday story is still worth telling, because it involves one of the more delicious ironies in recent copyright law: Disney successfully defending fair use. You may recall that George Santos—the famously untruthful former congressman—had sued Kimmel and Disney after Kimmel secretly commissioned some wonderfully absurd Santos Cameo videos for a segment called “Will Santos Say It?” Santos’s legal theory was that Kimmel’s deception meant this was commercial rather than personal use, violating the Cameo license terms.
At the time, we pointed out that was nonsense, and the use here would clearly qualify as fair use, and the district court agreed. So this is the follow up to that, which is that the Second Circuit has affirmed what should have been obvious from the start: Jimmy Kimmel’s use of George Santos’ Cameo videos was clearly fair use.
The analysis is refreshingly straightforward. On the crucial first factor—whether the use was transformative—the court noted that while Santos intended his videos to convey “feelings of hope, strength, perseverance, encouragement, and positivity,” what matters is what a reasonable observer would think, not the subjective intentions of either party:
Addressing the “purpose and character of the use” factor, Santos maintains that the use was not transformative because Kimmel “instigated the creation of the original Works” and accordingly is the “designer[]” of their original purpose. Appellant’s Br. 11. Santos does not dispute the District Court’s finding that the purpose of the allegedly infringing use was “to comment on the willingness of Santos . . . to say absurd things for money.” App’x 235. He argues instead that this was also his original purpose in making the videos. But whether a secondary use is transformative turns on what a reasonable observer thinks, not the subjective intent of the copyright holder or that of the secondary user. See Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 544 (2023) (“[T]he subjective intent of the user (or the subjective interpretation of a court) [does not] determine the purpose of the use.”). As Santos’s original allegation acknowledges, a reasonable observer here would think the videos conveyed “feelings of hope, strength, perseverance, encouragement, and positivity,” not a willingness to say absurd things for money.
Santos tried to argue that Kimmel’s deception in requesting the videos somehow negated fair use, but the court wasn’t buying it:
Santos also contends that Kimmel’s false representations demonstrate bad faith and thus nullify the fair use defense. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562–63 (1985). We disagree. It is true that “[f]air use presupposes good faith and fair dealing.” Id. at 562 (quotation marks omitted). But Santos’s complaint contradicts any claim of a purpose on the Defendants’ part to “supplant” Santos’s “commercially valuable right” in the videos. Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 83 (2d Cir. 2014) (quotation marks omitted). To the contrary, the complaint paints a portrait of defendants motivated by (sarcastic) criticism and commentary. See Authors Guild v. Google, Inc., 804 F.3d 202, 215–16 (2d Cir. 2015). We thus agree with the District Court that the first factor strongly supports a finding of fair use.
The market harm analysis was equally devastating to Santos’ case:
And it is clear on the face of Santos’s complaint that Santos has not suffered market harm within the meaning of the fourth fair use factor because “[w]e ask not whether the second work would damage the market for the first (by, for example, devaluing it through parody or criticism), but whether it usurps the market for the first by offering a competing substitute.”
Kimmel wasn’t setting up a competing Cameo service for disgraced politicians; he was mocking Santos’s willingness to say anything for money. If anything, all the publicity probably helped Santos’s business model.
Now, the truly eye-opening part of this story is watching Disney—Disney!—mount an aggressive fair use defense. This is the same company that spent decades systematically destroying fair use through lobbying, litigation, and the occasional threat. The same Disney that gave us the Sonny Bono Copyright Term Extension Act (aka the “Mickey Mouse Protection Act”). The same Disney that has historically treated “fair use” like profanity.
But here’s Santos with his silly copyright lawsuit, and suddenly Disney’s legal team morphs into EFF. They’re filing briefs about the vital importance of commentary and criticism, the transformative nature of parody, the essential role of fair use in protecting free speech.
Also worth calling out was that the Second Circuit also rejected Santos’ argument that the case was too complex for dismissal at the pleading stage, noting that fair use can be “so clearly established by a complaint as to support dismissal of a copyright infringement claim.” This matters more than it might sound: many courts treat fair use like it’s always a jury question, an issue of fact that a judge can’t decide without a full trial. But that completely defeats the purpose. Fair use is supposed to protect legitimate speech from copyright trolling. If you have to survive years of litigation and spend hundreds of thousands of dollars to vindicate your fair use rights, you don’t really have fair use rights at all. The old joke is “fair use is your right to hire a lawyer,” but having courts dump these frivolous lawsuits helps reinforce fair use.
The court also dismissed Santos’ state law claims for breach of contract and fraudulent inducement, finding they either failed to state valid claims or were barred by other legal doctrines.
The real lesson here isn’t just that Santos filed a silly lawsuit (though he did). It’s that fair use works when courts apply it correctly, protecting legitimate commentary and criticism from copyright abuse. The irony that this particular defense came from Disney’s legal team only makes it sweeter. Apparently even the Death Star occasionally uses its power for good.
Too bad Disney’s (surprising) strong support for Kimmel’s fair use rights didn’t carry over two days later when Trump’s FCC chair threatened the company over Kimmel’s First Amendment-protected criticism of the President, even if they came around and reversed their position today. Apparently defending fair use against a serial fabulist is easier work than defending free speech against an authoritarian—even for the Mouse that has never met a legal fight it wouldn’t pick.
