FIRE Reacts: Comey, Kimmel, ABC & the FCC

In this episode of So to Speak: The Free Speech Podcast, FIRE's Executive Vice President Nico Perino and a panel of legal experts—Connor Fitzpatrick, Aaron Turr, and Bob Korn-Revere—react to two major free speech developments: the second indictment of former FBI Director James Comey and the Federal Communications Commission's (FCC) unprecedented early review of ABC's broadcast licenses. The Comey indictment, based on a social media post featuring seashells spelling '8647' with a caption about a 'cool shell formation,' is condemned as a frivolous and constitutionally unsound prosecution. The panel argues that the post, even under the most extreme interpretation, does not meet the legal standard for a 'true threat' under the First Amendment, citing Supreme Court precedents like Watts v. United States and Rankin v. McPherson, which protect political hyperbole and expressions of hope for a leader's removal. They emphasize that the government's attempt to criminalize such speech constitutes viewpoint discrimination and risks chilling public discourse. The second issue centers on the FCC's move to review ABC's licenses following President Trump's public criticism of Jimmy Kimmel's jokes, particularly one mocking Melania Trump. The panel calls this a clear case of political retaliation and censorship, noting that the FCC's justification—ABC's DEI practices—is a pretext. They stress that the FCC’s licensing power, historically used to regulate broadcast content, is outdated and incompatible with modern First Amendment principles, especially in the internet age. The panel warns that such actions undermine the independence of regulatory agencies and set dangerous precedents for government overreach. The episode underscores the broader threat posed by political weaponization of government institutions, from the Justice Department to the FCC. The experts argue that even if the Comey case is dismissed, the mere process of prosecution serves as punishment and deters free expression. Similarly, the FCC’s early renewal review, while not immediate, could lead to a protracted legal battle that may ultimately be challenged in federal courts. The panel highlights the importance of institutional resistance, noting that corporations like ABC may face financial and legal risks in fighting back, but must do so to protect First Amendment rights. They also discuss the historical context of FCC regulation, from the fairness doctrine to modern attempts to regulate speech under vague standards, and warn that without robust judicial oversight, the administrative state risks becoming a tool for political suppression. The episode concludes with a call to action: support free speech advocacy through FIRE membership and attend the upcoming November free speech conference in Philadelphia.