On Tuesday night, former President Donald Trump hinted at a possible lawsuit against comedian Jimmy Kimmel in a post on his social media platform, Truth Social. Despite this claim, no formal litigation has been initiated as of yet. In response to Trump's remarks, ABC proceeded with airing "Jimmy Kimmel Live!" on Tuesday, showing no immediate signs of taking action against Kimmel following Trump's comments.
Election law expert Rick Hasen responded to Trump's insinuations in a blog post on Wednesday, emphasizing the absence of credible evidence to support Trump's assertion that ABC is “owned or controlled by” the Democratic National Committee. Hasen pointed out that such claims are not only baseless but also “incredibly alarming.” He further criticized Trump for targeting a media organization in pursuit of a “lucrative” settlement merely because it engages in critical commentary about the former president. Hasen argued that this behavior undermines the principles of self-governance and free elections.
The media exemption is a vital aspect of election law designed to protect the freedom of the press, allowing newspapers, TV networks, and other media outlets to cover and comment on political campaigns without being classified as political contributions or expenditures. This exemption extends to media content produced for entertainment, such as Kimmel's comedic monologues. The Federal Election Commission (FEC) has confirmed that this exemption encompasses content found on the internet and cable television, in addition to traditional media formats.
To determine whether content qualifies for the media exemption, the FEC employs a two-part test. The first criterion evaluates whether the entity in question is under the control of any political party, committee, or candidate. If it is not, the FEC assesses whether the company is operating as a press entity, defined as one that regularly disseminates news stories, commentary, or editorials. Kimmel's comedic critiques of Trump align with the FEC's standards, thus falling under the media exemption.
While the media exemption provides significant protections, it does not apply in scenarios where a media organization engages in political activities that extend beyond its standard news or entertainment operations. For instance, during his time on "The Colbert Report," Stephen Colbert created a super PAC. The FEC ruled that discussing the super PAC on the show was permissible under the media exemption, as it was part of the show's regular programming. However, any financial support for ads about the super PAC outside of the show would not be exempted and would count as contributions to that PAC.
Kimmel's program faced a controversial suspension last week after ABC's decision to halt the show following comments he made concerning the murder of right-wing commentator Charlie Kirk. This suspension generated significant backlash, with many critics arguing that ABC's actions seemed to be an attempt to placate the Trump administration, particularly after Trump had vocally criticized Kimmel. Just hours before the suspension, Federal Communications Commissioner Brendan Carr suggested that he might revoke ABC's broadcast license due to Kimmel's remarks.
After engaging in “thoughtful conversations” with Kimmel, ABC announced that "Jimmy Kimmel Live!" would return on Tuesday. Trump's comments regarding a potential lawsuit against ABC come on the heels of a pattern in which media companies, including ABC, have shown a willingness to settle legal disputes with the former president. Notably, ABC previously reached a settlement with Trump regarding comments made by host George Stephanopoulos about writer E. Jean Carroll's litigation against him.
The ongoing situation surrounding Kimmel and Trump's threats of litigation raises critical questions about the relationship between media entities and political figures, especially in an era where the boundaries of free speech and press freedom are continuously tested.
