In Genevieve Lakier, professor of law at the University of Chicago, whose research focuses on freedom of expression, the threats of Car against ABC seem to be “a fairly clear case of the jaw”. The jaw refers to a type of informal coercion where government representatives are trying to put pressure on private entities in the abolition or modification of speech without using real official legal action. Since the jaw is generally made of private letters and meetings, it rarely leaves a paper track, which makes it notoriously difficult to contest in court.
This Kimmel suspension is a little different, says Lakier. When the podcast appears, Carr explicitly named its objective, threatened regulatory action, and in a few hours, companies compared.
“The Supreme Court clearly indicated that this was unconstitutional in all circumstances,” explains Lakier. “You just haven’t been allowed to do this. There is no balancing. There is no justification. Absolutely no, the government cannot do it. ”
Even if the threats of Car equivalent to unconstitutional jaw, however, stop it could still be difficult. If ABC continued, coercion should be proven – and yet a prosecution took place, the filing of one could risk additional regulatory reprisals on the line. If Kimmel had to continue, there is no promise that he withdraw something from the costume even if he won, says Lakier, which makes him less likely to pursue legal action in the first place.
“There is not much for him, except to establish that his rights have been raped. But there are a lot of advantages for everyone, ”explains Lakier. “It has received so much attention that it would be good if there could be, from now on, a mechanism for more surveillance of the courts on what Carr does.”
Organizations like the Freedom of the Press Foundation have sought new ways to limit the power of Carr. In July, the FPF submitted an official disciplinary complaint to the DC disciplinary consulting office arguing that Carr had violated its ethical rules, distorting the law by suggesting that the FCC has the capacity to regulate the editorial points of view. Without formal decisions, the companies affected by CARR threats would be some of the only organizations that have set to the ground to continue. At the same time, they turned out to be some of the least likely groups to pursue legal action in the past eight months.
In a statement Thursday, the Democratic Directorate of the Chamber wrote that Carr had “disgraced the office he occupied by the intimidation ABC” and called him to resign. They said they planned to “make sure that the American people learn the truth, even if it requires the relentless unleashing of the power to assign the congress”, but did not describe any tangible way to brake the power of Carr.
“People need to be creative,” says Stern. “The old game book is not designed for this moment and the law only exists on paper when you have someone like Brendan Carr in charge of applying it.”
This vacuum has left CARR free to push as far as he wishes, and he frightened experts on the extent to which this previous one will travel. Created in the 1930s, the FCC was designed to operate as a neutral arbitrator, but years of media consolidation have considerably limited the number of companies controlling programming compared to diffusion, cable and streaming networks. Spectrum is a limited resource that FCC controls, giving the agency a more direct control over the distribution companies which count than on cable or streaming services. This concentration makes them infinitely easier to put pressure, benefiting the Trump, Carr administration, but also to the one who could then come.
“If political tides are running, I do not trust that Democrats will not also use them in an unconstitutional and inappropriate question,” explains Stern. The Trump administration “really sets up this world where each electoral cycle, assuming that we still have elections in this country, the content of the news of broadcasting could change considerably according to which political party controls the censorship office”.
