A Gulag Awaits Those Who Speak Ill of Dear Leader*
“That chill in the air isn’t Jimmy Kimmel’s show being suspended. It’s just autumn: the perfect time to say as little as possible.” A Beautiful Day for Saying Nothing (Alexandra Petri, The Atlantic, September 18, 2025).
Freedom of speech is the “matrix, the indispensable condition, of nearly every other freedom” — Justice Benjamin Cardozo. The “freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth” — Justice Louis Brandeis. “To suppress expression is to reject the basic human desire for recognition and affront the individual’s worth and dignity” — Justice Thurgood Marshall.
Free speech drives progress. Without this right, “individuals could not criticize government officials, test their theories against those of others, counter negative expression with a different viewpoint or express their individuality and autonomy.”[i]
As Trump’s approval further tanks and disapproval in all measurable categories skyrockets, it is no wonder the wannabe strongman is on a crusade to censor expression and advance an unchallenged authoritarian narrative of his singular genius and successes that are unmatched in all of human history.
Freedom of speech has taken a beating lately, mostly because many targets of Trump’s extortion are knuckling under. An emboldened Trump declared coverage of him that is critical is now illegal, that the First Amendment affords no protection to negative speech about him.
On Friday he said, “When 97 percent of the stories are bad about a person, it’s no longer free speech.”
Some observers might suggest the media’s reporting of Trump, according to his own assessment, was nearly perfect — off by only three percentage points.
Late-night comedians are now welcome to cover the president and his administration, but only in the most glowing terms. The latest casualty was corporate media’s capitulation to the threats of F.C.C. Chair and Don’s Underboss Brenden Carr to invoke sanctions or impose other coercive measures unless Disney suppressed Jimmy Kimmel’s speech — expression disfavored by the administration.
That is known as viewpoint discrimination.
A Supreme Court that can hardly agree on anything is unanimous in holding that viewpoint discrimination is illegal. It violates the Speech Clause of the First Amendment.
Here is some background on the threats and coercive methods the administration recently employed to suppress points of view with which it disagrees:
· The Walt Disney Company owns American Broadcasting Company (“ABC”).
· ABC broadcasts through affiliate stations.
· Sinclair Broadcast Group and Nextar Media Group together own 63 ABC affiliate stations.
· Last month Nextar announced a $6.2 billion deal to buy TEGNA Inc., which owns 13 ABC affiliate stations.
· The F.C.C. must approve the sale.
· The nationwide cap on the percentage of households a single entity’s television stations are allowed to reach is 39 percent. If Nextar acquires TEGNA, their collective reach into households will likely exceed the limit, so the F.C.C. must also raise the nationwide cap.[ii]
Late-night television talk-show hosts satirize whichever president and administration occupy the White House. With Trump and his desperately incompetent Consiglieres, Caporegimes, Soldiers, and Associates, the jokes often write themselves. These comedians are at or near the top of Trump’s hate list. He has schemed ways to shut them up by using the regulatory power of the federal government to shut them down, and the oligarchs are stepping in.
Jimmy Kimmel’s contract, which goes through 2026, is with Disney. After Kimmel said MAGAs were “desperately trying to characterize the kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it,” F.C.C. chair Brenden Carr purposefully misapprehended Kimmel’s criticism of MAGAs as a negative comment about Mr. Kirk. He welcomed this contrived opportunity to “recommend” that local ABC affiliates pre-empt coverage, threatening (illegal) action against ABC and its affiliates. On a conservative podcast, Carr said:
“When you see stuff like this, I mean, look, we 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 you know there’s going to be additional work for the F.C.C. ahead. . . .
“I think that it’s really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast[iii] and Disney and say, ‘Listen, we are going to pre-empt.’”
(Emphasis added.)
Shortly after Carr made the threat, Disney and a bunch of Nextar and Sinclair affiliates indefinitely suspended Kimmel’s late-night show, moving their F.C.C. licenses and the anticipated merger out of harm’s way by appeasing an administration that is in flagrant violation of law.
The federal government used Disney and ABC affiliates to engage in “viewpoint discrimination,” a clear violation of the First Amendment. A unanimous Supreme Court recently reconfirmed that a “‘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 v. Vullo, 602 U.S. (2024). The third parties in Vullo were insurers and their underwriters that offered benefits to members of the NRA.
The Vullo case has remarkable parallels to what happened here. Vullo, the superintendent of the New York Department of Financial Services, “allegedly pressured private regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups.” As much as people may disagree with the “NRA’s pro-Second Amendment viewpoint,” the Court properly found it was “core political speech.” The Court explained, “At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society. The Clause prohibits government entities and actors from ‘abridging the freedom of speech.’” (Emphasis added.)
With limited exceptions, the First Amendment prohibits federal and state actors, but not private employers, from infringing speech. The Vullo decision, however, provides Kimmel with the means to challenge his suspension if he is of a mind: Disney and the ABC affiliates served as the third party through which the federal government indirectly suppressed protected speech with which it disagreed.
Here, the administration clearly coerced private parties to punish or suppress the views of Mr. Kimmel which the Trump administration disfavored. As law professor Jacob Schriner-Briggs recently explained:
“Vullo emphasized that the First Amendment prohibits not just direct governmental interference with speech but indirect interference, as well. It made clear, as Professor Genevieve Lakier has explained, that public officials ‘may never intentionally attempt to use their informal powers’ over private actors ‘to evade constitutional constraint.’ And it established that the government can unlawfully coerce third parties into suppressing speech not only by threatening them with sticks (for instance, the revocation of a broadcast license) but also by enticing them with carrots (for instance, the approval of a merger).”
(Emphasis added.)
What speech does the First Amendment protect?
Almost all of it. And political speech, including satire, parody, and other forms of mocking criticism, is at the top. In Counterman v. Colorado, 600 U.S. 66 (2023), the Supreme Court reiterated that speech falling outside First Amendment protection is limited to four narrow categories. The rest, which is almost all of it, is fair game. The narrow categories that fall outside First Amendment protection are:
· “One is incitement — statements ‘directed [at] producing imminent lawless action,’ and likely to do so.”
· “Another is defamation — false statements of fact harming another’s reputation.”[iv]
· “Still a third is obscenity — valueless material ‘appeal[ing] to the prurient interest’ and describing ‘sexual conduct’ in ‘a patently offensive way.’”
· “‘True threats’ of violence is another historically unprotected category of communications. The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow.”[v]
(Emphasis added.)
Parody, satire, mocking criticism, and political commentary enjoy broad First Amendment protection. South Park serves up an excellent example. As explained in Freedom Forum:
“In July 2025, season 27 of ‘South Park’ — the long-running satirical TV cartoon that has generated both controversy and praise for years — launched with an episode targeting President Donald Trump.
“The episode, titled ‘Sermon on the ‘Mount,’ depicted Trump in bed with Satan, among other barbs, which led to the White House issuing the following statement:
“‘This show hasn’t been relevant for over 20 years and is hanging on by a thread[vi] with uninspired ideas in a desperate attempt for attention,’ White House spokesperson Taylor Rogers said. ‘President Trump has delivered on more promises in just six months than any other president in our country’s history — and no fourth-rate show can derail President Trump’s hot streak.’
“South Park doubled down in its second episode of the season, using its usual biting, darkly satirical approach to comment on the administration’s immigration and deportation policies, as well as other issues, while unflatteringly depicting Trump, Department of Homeland Security Secretary Kristi Noem, and Vice President JD Vance.
“The day after the episode aired, Vice President Vance responded by posting on his X account, ‘Well, I’ve finally made it.’
“There have been no legal challenges, or threats of legal challenges, related to these episodes.”
Parody, Satire and the First Amendment (Freedom Forum, September 4, 2025).
The ability to speak, to be heard, to be informed and to hear what others have to say without government interference — direct or indirect — is the most important set of rights in a democratic society, and the First Amendment assures them.
I hope Mr. Kimmel sues Trump, Carr, the F.C.C., Disney, Nextar, and Sinclair to vindicate his own rights — and ours — under the First Amendment.
*Robert Hodgson Van Wagoner, the talented fiction writer and novelist, is my brother. He deserves considerable credit for offering substantive and technical suggestions to my blog. His second novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. It is a literary masterpiece.
[i] The many reasons why free speech is essential (David Hudson, FIRE, November 2, 2022).
[ii] What a Local TV Merger Has to Do With Jimmy Kimmel’s Suspension (Keith Collins and Raj Saha, The New York Times, September 19, 2025).
[iii] Comcast sold its 33% stake in Hulu to Disney in June 2025, but the two companies have a long-term distribution agreement.
[iv] Degree of Fault: The required degree of fault in a defamation case is based on two factors: first, whether plaintiff is a private individual versus a public figure or public official and second, whether the allegedly defamatory statement references a matter of public concern. Matters relating to public figures and issues of public concern receive higher protection under the law and are therefore more difficult to prove. A public figure — such as Trump in his lawsuits against The Wall Street Journal and The New York Times over a 50th birthday wish to Epstein which the papers attribute to Trump — must prove “actual malice.” Actual malice in this context means the public official or public figure must prove a false defamatory statement was made with knowledge of its falsity or with reckless disregard for whether it was false. “Reckless disregard” means the defendant entertained serious doubts about the truth of their statement or had a high degree of awareness of its probable falsity.
The degree of fault in a case involving a non-public figure on a matter that is not of public concern is, at the most, negligence.
[v] “‘From 1791 to the present,’ the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas.’ United States v. Stevens, 559 U.S. 460, 468 (2010). These ‘historic and traditional categories’ are ‘long familiar to the bar’ and perhaps, too, the general public. One is incitement — statements ‘directed [at] producing imminent lawless action,’ and likely to do so. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Another is defamation — false statements of fact harming another’s reputation. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 342 (1974). Still a third is obscenity — valueless material ‘appeal[ing] to the prurient interest’ and describing ‘sexual conduct’ in ‘a patently offensive way.’ Miller v. California, 413 U.S. 15, 24 (1973). This Court has ‘often described [those] historically unprotected categories of speech as being of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in their proscription. Stevens, 559 U.S. at 470.
“‘True threats’ of violence is another historically unprotected category of communications. Virginia v. Black, 538 U.S. 343, 359 (2003); see United States v. Alvarez, 567 U.S. 709, 717–718 (2012) (plurality opinion). The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow (say, ‘I am going to kill you for showing up late’). Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam). True threats are ‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.’”
(Emphasis added.)
[vi] One might surmise that if the show lacked relevance and had hung by a thread for such a sustained period, Comedy Central would have canceled it years ago. Someone must think South Park is relevant and not hanging by a thread. South Park creators Trey Parker and Matt Stone just entered a contract for the show’s streaming rights worth $1.2 billion each. Paramount Global, the owner of CBS Corporation and parent company of Comedy Central, recently canceled Stephen Colbert’s contract, while it was in contentious negotiations for those streaming rights, and also in months-long negotiations to merge with conservative billionaire David Ellison’s Skydance Media. The merger required the approval of Trump’s Federal Communications Commission. South Park’s Creators Are Now Billionaires (Matt Craig, Forbes, July 25, 2025).