BLAKE E. REID
FCC Chairman Brendan Carr’s public campaign of unlawful threats against television broadcasters, culminating in the high-profile preemption and later return to air of late-night host Jimmy Kimmel, provides an important natural experiment for the law of jawboning. The Kimmel-Carr episode highlights the challenges of legal remedies against government officials over even the most flagrantly coercive, unlawful, and public jawbones. It also highlights the importance of intermediaries refusing to comply with unlawful demands—what this Essay calls jawbreaking.
Using the Kimmel-Carr episode as a case study, this Essay proposes moving beyond voluntary incentives for jawbreaking to impose a mandatory duty to jawbreak on speech intermediaries. The duty counteracts the risk of retaliation for intermediaries resisting unlawful threats with an equal or greater risk of future consequences for intermediaries knuckling under—such as the loss of a broadcast license. In turn, it proposes circumventing the political barriers that hamper most jawboning reforms by way of counterboning: bootstrapping the duty to jawbreak with warnings of future consequences under an extant statute such as the Communications Act. In doing so, it contemplates navigating the traps of jawboning law—including the jawboner’s (and the knuckler’s) dividend.
Finally, it considers the unexpected lessons of the Kimmel-Carr episode for debates over jawboning and Internet intermediaries. It highlights how the exceptional treatment of broadcasters under the Communications Act’s public interest standard and Internet intermediaries under Section 230 can leave both vulnerable to jawboning. And it considers what broadcast and Internet exceptionalism might have to teach each other about synthesizing jawbreaking.