Comey and Kimmel cases

Comey and Kimmel cases drive home Trump’s dim view of foes’ free speech

Analysis by Aaron Blake

Three weeks into President Donald Trump’s second term last year, Vice President JD Vance infamously lectured Europe about its free speech abuses. He also made a promise.

“Just as the Biden administration seemed desperate to silence people for speaking their minds, so the Trump administration will do precisely the opposite,” Vance said in Munich, Germany. “And I hope that we can work together on that. In Washington, there is a new sheriff in town.”

Ever since then, though, the Trump administration has appeared bent on making Vance eat those words. It has taken a remarkably dim view of free speech rights, at least where Trump’s foes and other disfavored groups are concerned.

And perhaps no day has driven that home like Tuesday did.

Early on, we learned that the Federal Communications Commission was taking the remarkable step of challenging ABC’s station licenses – as Trump once again is calling for the network to punish talk show host Jimmy Kimmel for a joke. Soon after, we learned the administration had secured an indictment against former FBI Director James Comey for conduct that, much like Kimmel’s joke, appears very likely to be constitutionally protected speech.

Both are second bites at the apple to punish foes after the first ones didn’t pan out. And in each case, they’re arguably even more transparent than the initial efforts.

In Kimmel’s case, the FCC ordered the review of the station licenses, which it claimed is tied to a probe into parent company Disney’s diversity practices, after the comedian told a joke that involved Trump’s demise. The offending remark was about how first lady Melania Trump had the “glow of an expectant widow.” The president had called for Kimmel’s firing.

This follows a previous instance in which ABC briefly suspended Kimmel’s show amid threats from FCC Chairman Brendan Carr over another Kimmel joke – this one involving the possibility that conservative activist Charlie Kirk’s assassin was a MAGA supporter (which has never appeared to actually be true).

Whether either of those jokes were good or even tasteful isn’t really material here; the point is that both appear to be well within the bounds of protected speech.

While Kimmel’s joke about the president’s demise lands differently after a gunman was later arrested a floor above Trump at the White House Correspondents’ Dinner over the weekend, it was hardly a threat. And Kimmel has explained that he was making a joke about the age gap between the 56-year-old Melania Trump and the 79-year-old and visibly aging Trump.

In the prior incident involving Kimmel, Carr claimed he wasn’t actually threatening ABC (despite saying things could be handled “the easy way or the hard way”). And part of the criticism there was also that Kimmel was spreading misinformation about an assassin.

But both of those claims are out the window this time as the FCC takes the major and very rare step of reviewing broadcast licenses, rather than just suggesting others should do something. Despite the FCC’s assertions, it’s difficult to argue this episode is about anything other than punishing a joke the administration didn’t like.

The Comey indictment presents similar dynamics.

Much like with Kimmel, the administration tried to go after the ex-FBI chief for a separate issue that didn’t pan out – namely, a September indictment for alleged false statements to Congress.

Except even conservative legal scholars were quite skeptical of those charges. The case was also apparently so thin that grand jurors rejected one charge and only narrowly approved two others – despite grand jurors very rarely rejecting charges.

The case was thrown out when the US attorney who secured it was ruled to be serving in the role illegally.

But rather than secure a re-indictment on those charges, the Justice Department has gone for a completely separate case – one stemming from Comey posting an image of seashells arranged to spell out “86 47.”

Trump and top administration officials had claimed when he posted it last year that it was a threat or even treason, even though “86” has plenty of meanings that aren’t “kill.” (“47” is shorthand for Trump, the 47th president.) Comey said he didn’t know it could have that meaning, and he quickly deleted the post.

The administration appears to face a similarly steep hill in getting a conviction in this case. It must not only convince jurors that “86” constitutes a threat – which could be extra-difficult given Comey says he stumbled upon the shells rather than arranged them himself – but recent Supreme Court precedent means it must also prove that Comey had “some subjective understanding of the threatening nature of his statements.”

That’s a very high bar. And experts have been dubious it can be cleared.

That said, landing a conviction of Comey or revoking licenses from ABC after what’s due to be a lengthy review process probably isn’t the point. There’s also plenty to be said for inconveniencing people you don’t like and sending a message to others who might do you wrong.

And the administration has made it clear that its foes’ free speech rights are of little concern in that effort.

Federal prosecutors previously, of course, sought indictments of six Democratic members of Congress for telling members of military not to obey illegal orders from Trump – even though that’s guidance service members are already given. A grand jury rejected those charges.

The Department of Defense launched an onerous press policy for Pentagon reporters that was later struck down.

The administration has sought to deport legal immigrants who expressed support for Palestinians.

Trump has launched thin lawsuits against media organizations whose coverage he disagrees with.

And after Kirk’s assassination, then-Attorney General Pam Bondi briefly previewed a planned crackdown on hate speech, even though hate speech is protected speech under Supreme Court precedent.

That and the first Kimmel episode around the same time are some of the few instances in which even conservative free-speech advocates actually pushed back on the administration – and caused it to retreat.

But clearly, it’s not done pushing the limits – in ways that fly in the face of what it promised on the First Amendment.