Kimmel, the First Amendment and a brewing battle with the FCC

• Jimmy Kimmel said during an April 23 segment that First Lady Melania Trump has "a glow like an expectant widow." The White House Correspondents Dinner was disrupted by a shooting days later.
• Both the president and first lady called for ABC to take action against Kimmel. A First Amendment expert said the FCC would have 'no basis for action' against ABC over the comment.
• The FCC previously initiated an "enforcement action" against ABC over Texas state Rep. James Talarico's appearance on "The View."

Late-night host Jimmy Kimmel could again put himself and ABC on a collision course with federal regulators.

In the days before the White House Correspondents' Association annual dinner in Washington, DC, which ended abruptly after 31-year-old Cole Thomas Allen allegedly opened fire outside of the event, “Jimmy Kimmel Live!” aired a segment presented as an “alternative” to the gala.  

"Mrs. Trump, you have a glow like an expectant widow," Kimmel said at one point. 

Melania Trump called Kimmel’s remark “hateful and violent” in an April 27 X post and said it was “time for ABC to take a stand.” 

President Donald Trump similarly said Kimmel’s comment was “far beyond the pale” in a Truth Social post that added he “should be immediately fired by Disney and ABC.” 

During his monologue later that day, Kimmel characterized his remark as a “very light roast joke” referencing the Trumps’ age difference and said it was “not, by any stretch of the definition, a call to assassination.”  

Kimmel also referenced the First Amendment during the monologue, saying, “Donald Trump is allowed to say whatever he wants to say, as are you and as am I, as are all of us, because under the First Amendment we have, as Americans, a right to free speech.” 

Federal Communications Commission Chairman Brendan Carr had not publicly addressed the controversy as of April 28. But the FCC did issue an order that day saying it "has been investigating" The Walt Disney Co., which owns ABC, and its subsidiaries "for possible violations of the Communications Act of 1934 and the FCC's rules, including the agency's prohibition on unlawful discrimination."

Carr has long questioned Disney's diversity, equity and inclusion practices, and the company has previously pledged to cooperate with the commission's inquiries.

The commission ordered the company to file license renewals for all of its licensed television stations by May 28 as part of its investigation.

FCC Commissioner Anna Gomez, appointed during former President Joe Biden’s administration in 2023, called the action a “political stunt” that is “unprecedented, unlawful and going nowhere.”  

“Companies should challenge it head-on,” Gomez wrote on X. “The First Amendment is on their side.” 

Seth Stern, chief of advocacy at the Freedom of the Press Foundation, said neither the First Amendment nor the FCC's mandate "permit the agency to use broadcast licenses as weapons to punish broadcasters for constitutionally protected content they air."

"The FCC is neither the journalism police nor the humor police," Stern's April 28 statement said. "This is nothing but illegal jawboning intended to intimidate ABC into kissing the ring."

Jameel Jaffer, executive director of the Knight First Amendment Institute, said the FCC "has no authority to cancel broadcasters' licenses because of their perceived political views" and accused Trump of "trying to consolidate control over what Americans see and hear on the radio, television and social media."

"If he gets his way, we’ll have only government-aligned media organizations that broadcast only government-approved news and commentary," Jaffer's statement said. "It would be difficult to imagine an outcome more corrosive to democracy or more offensive to the First Amendment.”

USA TODAY reached out to Disney and the FCC for comment.  

First Amendment protects Kimmel's speech, expert says

The controversy comes months after Kimmel’s temporary suspension over comments made in the wake of Charlie Kirk’s assassination. Carr made remarks at the time interpreted by some as a threat to pull the ABC station licenses if Kimmel wasn’t fired. 

The FCC has “no basis for action whatsoever” against the network over Kimmel’s comment about the first lady, said Robert Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression.   

“There’s no exception to the First Amendment for humor that the government considers to be in bad taste,” he said.

Corn-Revere said notions that Kimmel's remark was a call to violence are a “stretch.” 

“Nothing in a late-night monologue comes even remotely close to speech that is considered unprotected under the First Amendment if there’s not a serious call for any illegal action,” he said. 

Kimmel said during his monologue that if people wanted to tie his comment to the shooting, White House Press Secretary Karoline Leavitt should receive the same scrutiny given her remark before the event that Trump’s speech “will be funny, it will be entertaining – there will be some shots fired tonight.”

Leavitt condemned suggestions that the shooting was staged during an April 27 news briefing, saying it was "important to us that we get the truth and the facts about this case and any case out there as quickly as possible to dispel some of that crazy nonsense” circulating online.  

FCC took 'enforcement action' against ABC over 'The View'

Following the shooting, Gomez said such moments call for reflection on the impact of speech. At the same time, she said, “we cannot allow this tragedy to become a pretext for silencing speech, even speech we find objectionable.” 

“An event meant to honor the freedom of the press must never become a justification for undermining it," she wrote on X. 

The FCC in February announced an “enforcement action” against ABC in line with its equal time rules after state Rep. James Talarico, D-Texas, appeared on “The View” while running in the state’s Democratic U.S. Senate primary, which he later won over U.S. Rep. Jasmine Crockett, D-Texas.

Carr described it as a procedural matter at the FCC’s open meeting in March, saying ABC had not submitted the proper filing declaring an appearance by a political candidate that would then open the window for an opposing candidate to request “comparable time and placement.” He did not offer details about what the action entailed but said it was "ongoing." ABC did not return USA TODAY’s request for comment at the time.  

Gomez rejected Carr’s characterization, reiterating her view that “this administration and this FCC is using the equal time rule as a way to harass broadcasters for content that it disfavors.”  

BrieAnna Frank is a First Amendment reporter at USA TODAY. Reach her at [email protected]. 

USA TODAY's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.