Beyond Kimmel: The soft pressure that's silencing business

"The first might be called the Direct Method: The government brings down the hammer of censorship by criminally prosecuting an individual or business directly for their speech. From World War I through the 1920s, laws like the Espionage Act authorized imprisoning activists and newspaper publishers who circulated anti-war ideas. Earlier, the Sedition Act of 1798 effectively made it illegal to criticize the sitting president, John Adams, resulting in the prosecution of at least 25 Americans."

"The second tradition of censorship could be called the Indirect Method, utilizing what First Amendment scholars sometimes call "soft coercion." In this approach, the government leverages all the creative ways it can to punish speech peripherally - by withholding certain benefits, making regulatory tweaks, or tagging groups with toxic legal designations in national security or the tax code. This tradition came to define the McCarthy-era crackdown on Communist sympathizers, which reached its zenith in the 1950s."

"The suspension this past week of Jimmy Kimmel by ABC - at the apparent behest of FCC Chairman Brendan Carr - bears the features of soft coercion. Expressing displeasure at Kimmel's characterization of Charlie Kirk's assassin, Carr appeared on a podcast to announce that he would consider regulatory punishments for ABC if it didn't remove Kimmel from the air, before adding, "We can either do this the easy way, or the hard way." ABC announced Kimmel's suspensionhours later."

America has two distinct traditions for limiting expression: a Direct Method and an Indirect Method. The Direct Method involves criminal prosecutions for speech, with historical examples including the Espionage Act prosecutions during World War I and the Sedition Act prosecutions under President John Adams. The Indirect Method, or "soft coercion," uses regulatory pressure, benefit withholding, and legal designations to punish speech peripherally, as seen in the McCarthy era. A recent corporate suspension of a late-night host following FCC threats exemplifies modern soft coercion and prompted widespread public and partisan responses defending expression.

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