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.
The First Amendment restrains government, not private parties. The founding generation understood freedom of speech as a protection from government punishment for criticizing those in power, whether by imprisonment or fines for words already spoken, or by attempts to prevent speech from occurring before a single word is uttered. Private moderation by networks, venues, and platforms is not “censorship” in the constitutional sense unless government pressure or control is involved.
The Jimmy Kimmel controversy this week is a clean case study. ABC and its affiliates made editorial choices about a show they own. The new wrinkle is alleged government interference. If federal regulators threatened license action to induce content decisions, that crosses into constitutionally suspect coercion. Modern social media raises the same fault line. Courts have recognized the importance of online forums, yet they have repeatedly held that private platforms are not state actors, while striking down state laws that try to force platforms to carry speech. The constitutional target remains the government.
What the First Amendment Protects
The operative text is straightforward: “Congress shall make no law … abridging the freedom of speech, or of the press.” The Bill of Rights binds government, not private citizens or companies.
Early American practice confirms this understanding. The Sedition Act of 1798 criminalized harsh criticism of federal officials, triggered prosecutions of opposition newspaper editors, and provoked a national backlash that helped defeat the Federalists. James Madison’s Report of 1800 argued that robust criticism of government is essential and that federal punishment of speech is incompatible with a republic. Two centuries of case law sharpen the point. Government cannot punish mere criticism of public officials without meeting exacting standards, such as the “actual malice” rule for defamation claims brought by public officials or public figures. Incitement is punishable only if it is intended and likely to produce imminent lawless action, a very narrow window.
Bottom line. Freedom of speech is, first and last, a shield against government punishment or control.
Censorship, Moderation, and Intimidation
Censorship in constitutional law requires state action. Private owners of newspapers, TV networks, theaters, conference halls, or websites exercise their own speech and property rights when they curate, edit, or refuse to carry content. Courts have held that YouTube, for instance, is not a state actor and can make editorial choices without First Amendment constraints.
Intimidation by government is different. Officials cannot do indirectly what they cannot do directly. If regulators or law enforcement threaten penalties or use their leverage to coerce private parties into suppressing lawful speech, that is unconstitutional. This principle is old and new. The Court condemned “informal sanctions” and threat-driven suppression in Bantam Books v. Sullivan. Modern decisions like Backpage v. Dart and the Supreme Court’s unanimous 2024 ruling in NRA v. Vullo reaffirm that coercive pressure by officials violates the First Amendment.
When a private company or individual decides not to host or promote someone’s speech, that is moderation, not censorship under the Constitution. Censorship only happens when the government uses its power to silence people, either directly or by pressuring others to do it on its behalf.
Case Study: The Jimmy Kimmel Affair
What happened. During the week of September 15, 2025, ABC pulled Jimmy Kimmel Live! after a monologue about the killing of conservative activist Charlie Kirk. Large affiliate groups said they would not air the show. News outlets report that the FCC’s chair publicly warned ABC and Disney, suggesting possible regulatory consequences, and affiliates began preempting or replacing the program.
What this is not. Jimmy Kimmel did not ‘lose his freedom of speech.’ What happened is that his show was taken off the air by the network that owns the timeslot and controls distribution. That decision was an exercise of private editorial discretion, not a First Amendment violation. What might raise constitutional flags. The allegations that an FCC leader threatened license action or other regulatory reprisals to induce content changes would, if proven, look like classic unconstitutional coercion. The Communications Act explicitly denies the FCC a power of censorship, and the agency itself acknowledges that it is barred from trying to prevent the broadcast of viewpoints. The Supreme Court has repeatedly said government cannot weaponize regulatory tools to suppress disfavored speech.
Could Kimmel speak elsewhere. Yes. He can stage his own event, livestream independently, or partner with another distributor. His ability to speak is limited by contract and venue rules, not by criminal law. The First Amendment does not guarantee access to any particular private microphone.
Government Interference, the FCC, and the “Public Interest” Broadcast TV is regulated because it uses public spectrum, yet even here the government’s power is narrow. The FCC can sanction obscenity and indecency within strict limits and time windows, and it evaluates broadcast licenses under a “public interest” standard. It cannot dictate political viewpoints or punish lawful commentary. The statute flatly states that nothing in the Communications Act gives the Commission a power of censorship.
If threats of license consequences were deployed to punish or chill a particular viewpoint, that would run headlong into Bantam Books and NRA v. Vullo, because coercive “guidance” that pressures third parties to de-platform lawful speech is itself state action. The correct analytical lens for any Kimmel-related investigation is coercion, not mere disagreement with tone or taste.
Social Media: “The Modern Public Square,” With a Catch
The Supreme Court has recognized the civic importance of social media. In Packingham v. North Carolina (2017), the Court struck down a state law barring sex offenders from social media and observed that cyberspace, and especially social media, are “the modern public square.” The Court’s language emphasized the central role these platforms play in public discourse, but it did not hold that they are legally public forums subject to First Amendment obligations and are not bound by public-forum rules.
That point was clarified in Manhattan Community Access Corp. v. Halleck (2019). There, the Court held that operating a public-access channel did not make a private nonprofit a state actor. The First Amendment, the Court explained, “prohibits only governmental abridgment of speech” and “does not prohibit private abridgment of speech.” Similarly, in Prager University v. Google (9th Cir. 2020), the court rejected claims that YouTube was a state actor, reaffirming that private platforms retain their own editorial discretion under the First Amendment.
States attempted to override this principle by passing laws that restricted content moderation. In July 2025, the Supreme Court struck down Florida’s SB 7072 and Texas’s HB 20 in the consolidated NetChoice cases. The Court held that the First Amendment protects a private platform’s right to curate content and invalidated laws that imposed viewpoint-neutral carriage mandates or heavy-handed transparency requirements that burdened editorial judgment. Government, in short, cannot compel private editors (including digital platforms) to publish speech they choose not to host.
The Court has also clarified when government officials cross the line by using social media themselves. In Lindke v. Freed (2024), the case centered on James Freed, a city manager in Michigan, who blocked a resident from commenting on his Facebook page and deleted critical posts about the city’s COVID-19 response. Freed claimed the page was personal, not official. The Supreme Court created a two-part test:
- (1) Was the official using the account to carry out governmental duties or speak with the authority of office?
- (2) If yes, then blocking users or deleting comments is unconstitutional state action.
If the account is used mainly for personal life, the First Amendment does not apply. But if the account functions as an official channel, silencing critics there is treated like silencing them at a city council meeting.”
Policy question: Is social media so integral to civic life that it should be “free from moderation.”?
The current constitutional answer is no. Platforms remain private actors with their own First Amendment rights. The only time the Constitution bites is when government pressures or coerces platforms to suppress lawful speech. Future legislation might address concerns about market power, transparency, or interoperability, but it cannot strip platforms of their editorial discretion without running into the First Amendment, as the NetChoice decision made clear.
Conclusions
- The Founders built a shield against government punishment for speech, especially criticism of those in office.
- Private moderation is not constitutional censorship. Government intimidation is.
- The Kimmel episode is not a First Amendment violation by ABC, yet any credible evidence that federal regulators threatened adverse action to kill or alter the show moves the dispute into serious constitutional territory.
- Social media matters to public life, yet platforms are private editors under current law. The constitutional crosshairs stay on government coercion, not private moderation.
________________________________________ Sources accessed 20 September 2025 unless otherwise noted
National Archives, “The Bill of Rights: A Transcription” https://www.archives.gov/founding-docs/bill-of-rights-transcript
James Madison, “Report of 1800” (Founders Online) https://founders.archives.gov/documents/Madison/01-17-02-0202
First Amendment Encyclopedia, “Sedition Act of 1798” https://firstamendment.mtsu.edu/article/sedition-act-of-1798/
U.S. Supreme Court, New York Times Co. v. Sullivan (1964) PDF https://tile.loc.gov/storage-services/service/ll/usrep/usrep376/usrep376254/usrep376254.pdf
U.S. Supreme Court, Brandenburg v. Ohio (1969) PDF https://tile.loc.gov/storage-services/service/ll/usrep/usrep395/usrep395444/usrep395444.pdf
U.S. Supreme Court, Manhattan Community Access Corp. v. Halleck (2019) PDF https://www.supremecourt.gov/opinions/18pdf/17-1702_h315.pdf
Ninth Circuit, Prager University v. Google (2020) PDF https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/26/18-15712.pdf
U.S. Supreme Court, NRA v. Vullo (2024) PDF https://www.supremecourt.gov/opinions/23pdf/22-842_6kg7.pdf
Seventh Circuit, Backpage.com, LLC v. Dart (2015) https://law.justia.com/cases/federal/appellate-courts/ca7/15-3047/15-3047-2015-11-30.html
U.S. Supreme Court, Bantam Books, Inc. v. Sullivan (1963) PDF https://tile.loc.gov/storage-services/service/ll/usrep/usrep372/usrep372058/usrep372058.pdf
Los Angeles Times, “ABC drops ‘Jimmy Kimmel Live’ indefinitely…” https://www.latimes.com/entertainment-arts/business/story/2025-09-17/nexstars-abc-affiliates-drop-jimmy-kimmel-live-over-charlie-kirk-remarks
Variety, “FCC Chairman Threatens ABC, Disney over Kimmel’s Charlie Kirk monologue” https://variety.com/2025/tv/news/brendan-carr-abc-fcc-jimmy-kimmel-charlie-kirk-1236522406/
Reuters, “Disney’s Kimmel suspension shows Trump’s increasing grip over media” https://www.reuters.com/business/media-telecom/disneys-kimmel-suspension-shows-trumps-increasing-grip-over-media-2025-09-20/
PBS NewsHour, “WATCH: Trump says Jimmy Kimmel ‘said a horrible thing’ about Charlie Kirk” https://www.pbs.org/newshour/politics/watch-trump-says-jimmy-kimmel-said-a-horrible-thing-about-charlie-kirk
Deadline, “Jimmy Kimmel Pulled ‘Indefinitely’ By ABC…” https://deadline.com/2025/09/jimmy-kimmel-live-off-abc-charlie-kirk-comments-1236547397/
FCC, “The FCC and Speech” https://www.fcc.gov/consumers/guides/fcc-and-speech
47 U.S.C. § 326, “Censorship” https://www.law.cornell.edu/uscode/text/47/326
47 U.S.C. § 309, “Application for license” https://www.law.cornell.edu/uscode/text/47/309
FCC v. Pacifica Foundation (1978) PDF https://tile.loc.gov/storage-services/service/ll/usrep/usrep438/usrep438726/usrep438726.pdf
SCOTUSblog, “Court says states can’t compel platforms to host speech” (NetChoice cases, July 2025) https://www.scotusblog.com/2025/07/court-says-states-cant-compel-platforms-to-host-speech/
Cato Institute, “Supreme Court Sides With NetChoice” https://www.cato.org/blog/supreme-court-sides-netchoice-free-speech-digital-age
U.S. Supreme Court, Lindke v. Freed (2024) PDF https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf