Lamberton Law Blog

Textually, the First Amendment refers only to a right to speak and makes no mention of a right "to listen," "to hear," or "to know." Nevertheless, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817(1976), the Supreme Court held that "the protection afforded [by the First Amendment] is to the communication, to its source and to its recipients both." Id. at 756. Therefore, where one enjoys a right to speak, others hold a "reciprocal right to receive" that speech, which "may be asserted" in court. Id. at 757. To assert a "right to receive" claim, there must be an otherwise "willing speaker." Id. at 756. This ensures that the party bringing the "right to receive" claim has standing to sue, i.e., that "there is an injury in fact that would be redressed by a favorable decision." United States v. Wecht, No. 06-3098, 484 F.3d 194, 2007 WL 1086308, at *5 (3d Cir. Apr. 12, 2007). While the speaker need not actually speak and run the risk of Government retaliation, she or he must at least be willing to say that but for the Government's policy, threat, decree or other action the frightened them into silence, they would have spoken. Pa. Family Inst., Inc. v. Black, 489 F.3d 156, 165-166 (3rd Cir. 2007).

We believe that one of most significant harms caused by the Trump Administration's unprecedented attacks on public officials, government employees, scientists, researchers and members of the Academy is the loss of the ideas, opinions and expertise that they otherwise would have communicated. We are interested in hearing from current or former Government employees, academics and others who have changed their speech or refrained from speaking based on fear of Government retaliation.

In the two months since, the Administration has intensified its attacks on those who express views it does not like. It has called out by name philanthropist George Soros and his foundations, the Ford Foundation, the Nation magazine, and now it has brought about the cancellation of Jimmy Kimmel's late night talk show. All and solely because of the content of their speech. For example, immediately after Kimmel spoke about the killing of Charlie Kirk, Trump's FCC Chairman Brendan Carr appeared on the podcast of right-wing activist Benny Johnson saying the FCC had “remedies that we can look at” and that "[w]e can do this the easy way or the hard way …. These companies can find ways to change conduct and take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.” Within hours of Carr’s comments, two major conservative-leaning broadcast ownership groups removed Kimmel from their stations. Both had business and policy issues in front of the FCC. Within a few more hours, ABC cancelled Kimmel's show. 

"[A] government entity’s threat of invoking legal sanctions and other means of coercion against a third party to achieve the suppression of disfavored speech violates the First Amendment.  Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors."  NRA of Am. v. Vullo, 602 U.S. 175, 180, 144 S. Ct. 1316, 1322 (2024) (internal citations omitted, cleaned up). Citing its prior decision in Bantam Books v. Sullivan, 372 U.S. 58, 83 S. Ct. 631 (1963), the Supreme Court explained that "the First Amendment prohibits government officials from relying on the 'threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression' of disfavored speech. Id., at 67, 83 S. Ct. 631, 9 L. Ed. 2d 584. In Bantam Books, a state commission used its power to investigate and recommend criminal prosecution to censor publications that, in its view, were "objectionable" because they threatened "youthful morals.” The commission sent official notices to a distributor for blacklisted publications that highlighted the commission’s “duty to recommend to the Attorney General” violations of the State’s obscenity laws. The notices also informed the distributor that the lists of blacklisted publications “were circulated to local police departments,” and that the distributor’s cooperation in removing the publications from the shelves would “‘eliminate the necessity’” of any referral for prosecution. A local police officer also conducted followup visits to ensure compliance. In response, the distributor took “steps to stop further circulation of copies of the listed publications” out of fear of facing “a court action.” The Court ruled that "[a}lthough the commission lacked the “power to apply formal legal sanctions,” the distributor “reasonably understood” the commission to threaten adverse action, and thus the distributor’s “compliance with the [c]ommission’s directives was not voluntary.” To reach this conclusion, the Court considered things like: the commission’s coordination with law enforcement and its authority to refer matters for prosecution; the notices themselves, which were “phrased virtually as orders” containing “thinly veiled threats to institute criminal proceedings” if the distributor did not come around; and the distributor’s reaction to the notices and followup visits.

Since Bantam Books, the Courts of Appeals have considered similar factors to determine whether a challenged communication is reasonably understood to be a coercive threat. These factors include “(1) word choice and tone; (2) the existence of regulatory authority; (3) whether the speech was perceived as a threat; and, perhaps most importantly, (4) whether the speech refers to adverse consequences.” Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf. NRA of Am. v. Vullo, 602 U.S. 175, 189-91, 144 S. Ct. 1316, 1327-28 (2024). “Generally speaking,” the Court wrote, “the greater and more direct the government official’s authority, the less likely a person will feel free to disregard a directive from the official.” 

There is a straight line from the FCC's threat against ABC, based solely on the content of Kimmel's speech, to the cancellation of Kimmel's show. This is a class action case waiting to be filed.