FIRE Reacts: Comey, Kimmel, ABC & the FCC

Summary

Podcast Summary: So to Speak: The Free Speech Podcast

Episode: FIRE Reacts: Comey, Kimmel, ABC & the FCC
Release Date: April 29, 2026
Host: Nico Perrino (FIRE Executive Vice President)
Guests: Connor Fitzpatrick (Supervising Senior Attorney), Aaron Terr (Director of Public Advocacy), Bob Corn-Revere (Chief Counsel)

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Overview

In this "FIRE Reacts" edition, host Nico Perrino and a roundtable of FIRE's legal experts analyze two major free speech controversies dominating the headlines:

1. The DOJ’s second indictment of former FBI Director James Comey over an Instagram post using the phrase "86/47"—allegedly a veiled threat to the president.
2. The Trump administration's move to open early FCC license reviews into ABC, widely seen as retaliation for late-night host Jimmy Kimmel’s jokes about Donald Trump and his family.

The episode dissects the legal standards at play, evaluates implications for First Amendment protection, and explores the historical context for government retaliation against protected speech.

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Segment 1: Comey Indictment Over Instagram Post

[00:41–28:58]

Key Discussion Points

• Details of Indictment ([00:41])
  • James Comey is indicted on two criminal counts regarding an Instagram post of seashells spelling out "86/47", captioned "cool shell formation on my beach walk." Prosecutors claim "86" is coded slang for "kill" and "47" for the 47th president (Trump).
• First Amendment 'True Threats' Standard ([02:26], [03:11])
  • Aaron: “A true threat is a serious expression of intent to commit unlawful violence against a particular individual or group… What the government is doing here is purposely taking the least charitable interpretation of what Comey posted.”
  • Discussion of multiple possible meanings for “86,” most of which are benign (e.g., "remove," "fire," "impeach").
• Historical & Legal Context ([06:37])
  • Reference to Watts v. United States—militant anti-draft speech held to be political hyperbole, not a prosecutable threat.
  • Bob: “The Supreme Court said, no, this is the kind of political hyperbole that you find in these kinds of protests, it is protected by the First Amendment.” ([07:51])
  • Mention of Rankin v. McPherson: expressing a wish for a president’s death (even as a government employee) is still protected speech.
• Conditionality and Severity ([09:00], [09:18])
  • Conditional or vague language further weakens the prosecution’s case.
  • “Here you simply have a picture shared on social media of a coded message that, even if you took the most extreme interpretation…would not amount to a threat under established law.” – Bob ([09:18])
• Legal Process & Chilling Effect ([11:18], [13:39])
  • "The process is the punishment.” Even if charges are dismissed, the burden on the defendant and the chilling effect on other speakers are severe. ([13:39])
  • Conor: “Had James Comey left this post up, I am under no illusions that this indictment would not have been sought by this administration anyway.” ([10:15])
  • Bob: “When the DOJ files what appear to be transparently politically motivated charges…and based on the flimsiest allegations, then it loses a lot of credibility…” ([14:43])
• Disciplinary Consequences for Prosecutors ([15:29])
  • Possible—but rare—for attorneys who prosecute frivolous cases to face bar discipline.
  • Conor: “Every attorney in the DOJ who went along with this political grudge should be ashamed of their role in it, should they have the capacity for shame.” ([16:29])

Notable Quotes

• Aaron ([02:26]): “No, I don't think this indictment passes the sniff test.”
• Connor ([05:11]): “The government had a stronger case against the sandwich. This is an incredibly weak indictment.”
• Bob ([06:52]): “If you go back to the 15th century…Edward IV of England had someone beheaded because he imagined the death of the king…That kind of restriction on speech led the framers to adopt the First Amendment.”
• Aaron ([07:51]): “…you can wish, as ugly as it might be and as offensive as some might consider it, you can wish for the death of…government officials. The way to respond is to call it out, not use government authority to punish the speech.”

Timestamps for Key Legal References

• True Threats/Watts Case: [06:37–07:51]
• Rankin v. McPherson: [07:51]
• Process as punishment: [13:39–14:43]
• Prosecutor Disciplinary Risk: [15:29]
• Chilling Free Speech & Selective Prosecution: [13:39–16:29]

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Segment 2: Legal Standards for 'True Threats' and Incitement

[18:07–28:58]

Key Discussion Points

• Where the Line Is Drawn ([18:24])
  • Threats cross the legal line when there is clear evidence of intent to cause harm or inflict bodily injury, not just rhetorical or wishful statements. ([18:24–19:56])
  • Citation of the Counterman case, which clarified that the prosecution must prove the speaker was subjectively aware of the threat.
  • Bob provides a clear historical example: Offering money for someone to commit violence, saying “this is not a joke,” would meet the true threat standard. ([19:56])
• Distinguishing Incitement vs. Threats ([20:34], [21:01])
  • Incitement requires urging others to imminent lawless action.
  • Connor: “The government is trying to argue this is a true threat…It’s not incitement.” ([21:01])
  • Bob draws contrast between the Comey post and Trump’s January 6 speech, noting the latter far more closely approaches incitement. ([21:31])
• Misuse of Legal Categories in Debate ([22:00])
  • People often inappropriately label disfavored speech as "harassment," "hate speech," or "incitement" without meeting the actual legal standards. ([22:00])
  • Bob: “The First Amendment is no word game. There are legal standards that we need to tether these words to.” ([28:58])

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Segment 3: FCC & ABC License Investigation Over Jimmy Kimmel

[28:58–52:07]

Key Discussion Points

• Background: Political Retaliation via Broadcast Licensing ([28:58], [31:30])
  • Trump has called for Jimmy Kimmel's firing over jokes; Melania has lodged complaints, and the day after a controversial Kimmel joke, FCC launches early license renewal review of ABC.
  • Bob (former FCC chief counsel): “To do [early review] over programming, and in particular over statements on a program officials don’t like…that is unprecedented.” ([31:30])
• Justifications & Pretexts ([32:39])
  • FCC claims justification is Disney/ABC’s diversity, equity, and inclusion (DEI) practices—a rationale experts call a "smokescreen."
  • “DEI is not an issue on which [the FCC] has inherent authority…even if this were the justification…it would not survive any kind of review.” – Bob ([32:50])
• First Amendment Implications and Precedent ([34:19])
  • Connor links NRA v. Vullo: First Amendment bars government from punishing (or pressuring) speakers based on disfavored views.
  • “The First Amendment before all else is a bar on the government from subjecting companies and individuals to disfavored treatment because the government doesn't like what they have to say.” – Connor ([34:37])
• Broadcast Licensing History; Scarcity Rationale ([35:17], [36:44])
  • Licensing traces to early 20th-century scarcity of frequencies—a rationale that experts argue is now outdated in the internet era.
  • Debate over whether broadcast regulation should exist at all; historic abuses cited under both Republican and Democratic administrations.
  • Fairness Doctrine abolished in 1987, but jawboning via licensing threats persists.[38:39]
• Administrative and Legal Next Steps ([41:04])
  • License review is a long process: FCC hearing, administrative law judge, agency appeal, then (potential) appeals up to SCOTUS. “We’re talking about a multiyear process at best.” – Bob ([41:04])
  • High financial stakes likely make ABC more willing to fight than in previous, less existential disputes.
• Role of the Administrative State & Agency Independence ([49:09], [50:02])
  • Reference to Humphrey’s Executor case and (potential) decline of agency independence, heightening risk of direct political control and more censorship.
  • If FCC becomes more openly an “arm of the executive,” threat of content-based regulation rises—courts must act as a check.

Notable Quotes

• Bob ([31:30]): “To do [early renewal] over particular programs or statements on a program that officials don't like…that is unprecedented.”
• Connor ([34:37]): “The First Amendment, before all else, is a bar on the government from subjecting companies and individuals to disfavored treatment because the government doesn't like what they have to say.”
• Bob ([44:21]): “The FCC is an agency that was built for jawboning. There’s even an expression called regulation by raised eyebrows.”
• Aaron ([51:53]): “I don't think we have anything to worry about, because Brendan Carr said…Oh wait, that was three years ago before he was in power as chairman.” (sarcastic jab at reversals in regulatory rhetoric)

Timestamps for FCC Segment

• Intro and summary of ABC/Kimmel situation: [28:58–31:30]
• FCC process/precedent: [31:30–34:19]
• Fairness Doctrine history: [38:39]
• Legal process/timeline: [41:04]
• Administrative independence/Humphrey’s Executor: [49:09–50:57]

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Memorable Moments

• “The government had a stronger case against the sandwich.” – Connor ([05:11])
• “You can wish, as ugly...as some people might consider it, you can wish for the death of government officials. The way to respond…is to call it out…not use government authority to punish…” – Aaron ([07:51])
• “This is the kind of political hyperbole...it is protected by the First Amendment.” – Bob ([07:51])
• “The process itself does become a form of punishment, even if the government ultimately loses.” – Aaron ([13:39])
• “Regulation by raised eyebrows.” – Bob ([44:21])
• “The First Amendment is no word game.” – Nico ([28:58])
• “Ostensibly, each new technology has had to win its First Amendment rights.” – Bob ([46:58])

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Conclusion

This episode offers an expert breakdown of two unfolding free speech battles: a seemingly frivolous criminal charge against James Comey over symbolic and ambiguous social media speech, and a blatant attempt to leverage regulatory power against a media company because of editorial content critical of the sitting president. Through legal history, doctrine, and practical insight, the panel underscores the enduring importance of protecting unpopular, offensive, or politically inconvenient speech from government retaliation—whether through prosecutions or regulatory licensing.

The episode closes with a nod to ongoing battles over applying First Amendment standards to new media and government attempts to exploit regulatory power for political ends.

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Further Resources

• Key Supreme Court cases cited: Watts v. United States, Rankin v. McPherson, NRA v. Vullo, Counterman v. United States
• Books by Bob Corn-Revere, e.g., The Mind of the Censor and the Eye of the Beholder

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For a deeper dive and to connect with the FIRE community, listeners are invited to future webinars and the upcoming Free Speech Conference in Philadelphia (Nov. 4–6, 2026).

Transcript

[A]

Hey, everyone, thanks for joining this afternoon, or if you're coming to us from the west coast this morning. I am fire's Executive Vice President, Nico Perino, here for this edition of FIRE Reacts. This is our series that we periodically put together when we think there's a lot of free speech news happening that you, our members, or you the general public. This episode is open to the general public might have questions about. Joining me today for this edition is Connor Fitzpatrick, a supervising senior attorney here at fire, and Aaron Tur, our director of public advocacy, and Bob Korn, Revere, fire's chief counsel. Gentlemen, thank me. Thanks for joining this afternoon.

[B]

Good to see you, Nico.

[C]

Good to be here.

[A]

So the news we have, I'm sure all of you are familiar with. We got a second indictment of James Comey yesterday, and we also got news that ABC's broadcast licenses are coming up for early renewal, that. Well, we're going to start with the James Comey indictment. Again, I said this is the second indictment. And this indictment stems from a post that James Comey, it looks like, put on Instagram back on May 25th of 2025 for our listening audience. I'm holding up the post here, and in it, you can see that it says 86.

[B]

You may get indicted, too, for holding that up.

[A]

I. I guess I might. You know, it says 86.47 in seashells on top of sand. It looks like this is on a beach somewhere. And James Comey's caption here is cool shell formation on my beach walk. So, nearly a year later, the Department of Justice moved forward with an indictment of former FBI Director James Comey on two counts. One, for threatening the President of the United States in violation of Title 18 of the United States Code, Section 871, and the second count being transmitting a threat in interstate commerce, Commerce in Violation of Title 18 of the United States Code, Section 87.5C. So, Aaron, I want to start with you here. The threat language. This would seem to implicate the First Amendment standard for a true threat. Does the Department of Justice have a colorable case for indicting former FBI Director James Comey?

[C]

No, I. Just leave it there. No, I. I don't think this indictment passes the sniff test. So, like you said, they're trying to fit it into the First Amendment exception for true threats. A true threat is a serious expression of intent to commit unlawful violence against a particular individual or group of individuals. And the government's theory is that that's what Comey was doing by posting this image of Seashells arguing that the term 86 means to kill 47, which stands for the 47th president, Donald Trump. But this expression. So the term 86, for people who aren't familiar with it, it's, it's slang. It's been around for a long time, and it generally, it generally means to get rid of or remove something or someone. So it's common, for example, in the restaurant industry when you're taking an. You run out of an item and you take it off the menu to say you're 86 in that item. There was also. I was just looking for previous examples of how the term has been used, and I found when the Chicago Bulls fired their head Coach Back in 2020, there was a newspaper article in the Chicago Sun Times that said that he was 86. I'm pretty sure the Bulls front office didn't murder their head coach. I mean, someone maybe wants to check that. But it could also mean removing Trump from office through, say, by voting him out or through impeachment and removal from office. So it doesn't, it doesn't inherently mean that you're trying to remove somebody by murdering them. And I think what the government is doing here is taking, purposely taking that the least possible charitable interpretation of what Comey posted without any evidence that that's what he actually intended.

[A]

I should note that this is an interactive webinar, so if you have questions for us, please go to the bottom of your screen and click the Q and A button and type in your question. We'll do our best to get to it. If you don't see the Q and A button, you might have to click the three dots that say more. There'll be a menu that pops up, and you should see the Q and A button there, and you can type in your question. Again, we'll try and get to as many of your questions as we can. The questions are what make these live webinars interesting. And if you disagree, particularly if you disagree with anything that Aaron just said, please put it in the Q and A window there and we'll do our best to address your critique. But, Connor, I want to move quickly to you reading count one. It says that James Brian Comey Jr. Did knowingly and willfully make a threat to take the life of, and inflict bodily harm upon the President of the United States. How significant is that knowingly and willfully language?

[D]

Well, the knowingly and willfully language comes from the statute. So to even bring an indictment under this statute, they had to include that language. But as Aaron mentioned, in order for an indictment under this statute to pass muster under the First Amendment, it needs to comply. It needs to comply with the Constitution, and here it doesn't. Because this is nowhere approaching a true threat. You know, the joke about grand juries is that you could get a grand jury to indict a ham sandwich. Honestly, I think the government had a stronger case against the sandwich. This is an incredibly weak indictment. And one thing that I'd like to add, just to sort of piggyback off of what Aaron said, is that even if you. Even if you cast aside all of the alternate definitions of 86, even if you actually think James Comey was saying, I think someone should kill Donald Trump, that is still protected speech under the Constitution. And I'll give you an example why. Imagine if in the years after 9, 11, somebody said out loud or on social media, I hope someone kills Osama bin Laden or I hope someone kills Vladimir Putin or Kim Jong un. That is 100% protected speech. the point that the government starts to get. At the point the government gets to decide, all right, you can express that sentiment about this person, but you can't express it about that person. That's viewpoint discrimination. That's the government deciding which opinions you are and aren't allowed to voice. And the First Amendment is always going to stand in the way.

[A]

Bob, there is some history on these threats to the president. Right. There have been attempts to prosecute people for making threats on the president in the past, and one in particular led to the standard that we use when we're considering true threats against the president. Can you talk about that Watts case?

[B]

That's right. Well, there's an even deeper history there. I mean, this is part of the reason why we have a First Amendment. If you go back to the 15th century, Edward IV of England had someone beheaded because he imagined the death of the king. Right. And so that was considered to be high treason. It's that kind of restriction on speech that led the framers of the Constitution to adopt the First Amendment in the first place. And then once the Supreme Court started deciding cases under, it, set a very high threshold for what would be considered a threat. The Watts case that you mentioned, for example, decided during the turmoil over the Vietnam War. You had someone who. Who was opposing the draft, and he said, if they put a rifle in my hands, the first person I'm going to get in my sights is lbj. And so he was prosecuted for threatening the president. And the Supreme Court said, no, this is the kind of political hyperbole that you find in these kinds of protests, it is protected by the First Amendment,

[C]

by the way, I'll add one more Supreme Court precedent which is relevant when you talk about whether you're allowed to wish or express a hope for someone's death, including the president, and That's Rankin v. McPherson, where a clerk in a police department, after there was an attempt on President Reagan's life, said to a coworker, if they go for him again, I hope they get him, or something like that. And the Supreme Court held that not only was the speech protected, but not only could she not be prosecuted for that speech, they couldn't even fire from her government job over it because they weren't able to show that, you know, it actually disrupted the functioning of the workplace. So. So, yeah, that, like, that goes back to Connor's point. You know, you can. You can wish, as ugly as it might be and as offensive some people might consider it, you can wish for the death of. Of other people, including government officials. And I think, you know, the way to respond to that is you can call it out. You can. You can call on people to not engage in that type of rhetoric and to try and take down the temperature, but the government can't use its authority to punish people for engaging that type of speech.

[A]

Those two cases that you're discussing there, Bob and Aaron, it seems like the statements in those cases were conditional. If they give me a gun, you know, the first person I get my sights would be lbj, that is Lyndon Baines Johnson, the then president. Does it matter that those statements are conditional, Bob?

[B]

Well, it goes to the constitutional test for whether or not that could be considered a credible threat and whether or not there was intent behind it. But those factors, I think, don't affect this prosecution, where you simply have a picture shared on social media of a coded message that if you took the most extreme interpretation of that message, that then you would get to the suggestion that he's wishing death to the President. None of that, I think, would amount to a threat under established law.

[A]

Conor, let's get to some of the questions here. We have Roger Ask. Was it a mistake for James Comey to have taken down the 8647 image from Instagram? Wouldn't he have been better off, legally speaking, if he hadn't even mentioned the possibility that someone might interpret the phrase as a threat against the president? How do you. What do you make of the fact that he deleted that post shortly after posting it?

[D]

I don't. I don't think that has. I don't think that has much weight one way or the other. This is just such core protected speech. It's so far afield from anything that could even approach a gray area that I don't. And let me put it this way. Had James Comey left this Instagram picture up, I am under no illusions that this. The indictment would not have been sought by this administration anyway.

[B]

Yeah, I think in that regard, you really can't avoid looking at the context in which this renewed prosecution takes place. There's a long rancor between the President and James Comey. The President dismayed that Comey didn't show him sufficient loyalty. He has been a target of the President's wrath ever since the first term. And so seeing this prosecution weak under any terms being undertaken in this context makes it even more astonishing that anyone could take this seriously.

[A]

Aaron, you kind of addressed this earlier, but Jason has a question he asked. Doesn't bringing this kind of weak charge just mean the process is the punishment whether the government wins or not? They just want to make Comey's life miserable.

[C]

Yeah, yeah, absolutely. It's. Even if I think we all. We all agree that these are frivolous charges and they likely and hopefully will. Will be dismissed, and this won't even go to a jury. But even if that's the case, it's.

[A]

What does that mean for our listeners who aren't familiar with civil procedure? How can this be dismissed before it even gets to a jury?

[B]

Criminal procedure.

[A]

Criminal procedure. Excuse me.

[C]

Yeah, one of our litigators would rather answer that.

[B]

Go.

[A]

Or Connor, please.

[D]

Yeah, I can take it. So James Comey will be able to file a motion to dismiss under Rule 12, I think, B3 of the Federal Rules of Criminal Procedure. The way that works is that it is assumed that all of the factual allegations in the indictment are true, and the defendant, James Comey, will argue. Even if all of the factual things you allege in this indictment are true, it still does not state a crime or the indictment violates the First Amendment. So I certainly anticipate that his counsel will file a motion to dismiss on the face of the indictment. And frankly, I expect that it should be successful.

[A]

Bob, in his previous indictment, the previous case against James Comey, if I recall correctly, he did something to argue that it was a vindictive or targeted prosecution. Is that something he can do here? What does that mean? Where do you make those arguments? And do you think he's likely to succeed?

[B]

Yeah, you can make that argument also in the motion to dismiss. Argue that this is selected prosecution. The fact that this is part of a series of actions bolsters his argument in that regard. I think that will reinforce the arguments that this is a defective charge on its face under the constitutional standard. And I think he will have very strong grounds for having this thrown out.

[A]

We have.

[C]

I never do we want to just go back and finish answering the. The processes. The punishment.

[A]

Yes, please, please. And there was actually another question that I meant to ask you, and then it looks like it got deleted somehow. But let's ask the process as punishment. Answer the process as punishment question.

[C]

Yeah, just. Just to finish the thought on that. But the idea is that even if Comey is able to get the case dismissed, he still has to endure the time, expense and stress of defending himself against. Against criminal charges. And so, yes, in that sense, the process itself does become a form of punishment, even if the government ultimately loses. And then there's also the. The problem of the prosecution casting a wider chilling effect on public discourse. To all the other people who are watching this unfold and thinking, and people who aren't nearly as powerful or influential as a former FBI director and thinking, I better think twice before I engage in any type of speech that is similar or that the administration might try to construe as a true threat or otherwise unlawful, just because it's harshly critical of them in some way and that they're likely to engage in self censorship because they're really not going to want to risk the chance that they're going to face criminal charges and potential loss of liberty for speaking out against the administration. So I think that's really one of the real dangers of a prosecution like this.

[B]

I agree with all of that. But there's also a backlash and a downside for the government when it brings frivolous charges like this. I think that when the Justice Department files what appear to be transparently politically motivated charges and based on the flimsiest of allegations, then it loses a lot of credibility and has continued to lose credibility in front of the courts in which it brings these kinds of challenges. It's losing what is called in the law the presumption of regularity, where courts normally will assume that the government's actions are taken as a matter of course, are taken for lawful reasons. But courts are beginning to question that increasingly because of cases like this.

[A]

To that point, we have a question from Mark Schneider who asks, can the prosecutors be disbarred for bringing this case?

[B]

That's a very high standard, but there are, there is precedent for bringing disciplinary charges under state bar rules against Lawyers who bring frivolous cases. And you know, for example, the former acting U.S. attorney in D.C. ed Martin, is facing charges, disciplinary charges under the D.C. ethics rules, and that was for his abuse of the alleged abuse of that authority. It could happen similar. It's a very high bar for being able to show that, because otherwise, any, anytime someone prosecutes an unsuccessful case, you could potentially face that kind of, that kind of sanction. But to answer your question, yes, it is possible.

[D]

Yeah. Nico, One thing I'd like to add on that, I setting the indictment aside, which is obviously hard to do, I think one of the most distressing things about this news is that prosecutors in the Department of Justice went along with it. There's a history in the United States of presidents, whether it's Donald Trump or Richard Nixon or whomever wanting to go after their political enemies. But certainly when I took my oath and was sworn in to the bar in state and then in federal court, it was impressed upon me by the judges who did the swearing in that we all have a responsibility, not just to our clients, but we have a responsibility to the Constitution and to be an officer of the court. And that necessarily means under our ethical obligations, not filing papers that have no basis in law. So I would say one of the most disheartening things about yesterday is that there was a signature of an attorney on that indictment. I think every attorney in the Department of Justice who went along with this political grudge that has absolutely no constitutional basis should be ashamed of their role in it, should they have the capacity for shame.

[B]

I would agree with that. And I would add that this violates not just the local bar rules, it Every federal officer takes an oath of office when they take on that employment to uphold and defend the Constitution of the United States. That is independent of the separate oath you take as a member of the bar. And so this is doubly bad for any attorney that would go along with a political prosecution where there is no legal basis, as there is not here.

[A]

So Aaron Randy asks here, at what point does a death threat cross the line from idle protected speech to a genuine threat underestablished law? Like what could meet the true threat standard? Is there any hypothetical or actual example that you can think of?

[C]

Yeah, I mean, if you there there have been. I'm trying to think of some cases I've seen recently where someone would send a letter to somebody expressing a serious intention to, to kill them or inflict physical violence on them. The question really comes down to intent and whether given the person's words and the context surrounding them, the government can prove beyond a reasonable doubt that they actually intended it as they either specifically intended it as a serious threat to do harm and they knew that's what they were saying and they intended that way, or the government has to at least prove that they consciously disregarded a substantial risk that their words would be perceived as a serious threat.

[A]

And that's the standard the Supreme Court clarified in the counterman case from a few years ago. Correct?

[C]

Exactly. Because before that, there was sort of a. There was a circuit split among the federal courts about whether what the defendant's state of mind had to be in order to prove that they made a true threat. So there does have to be some subjective awareness that the statement will be. Will be taken as a threat. But, you know, there are cases that are not, you know, that difficult for the government to prove where there's just no other real reasonable way to interpret what somebody said other than that they're actually threatening violence against somebody. But again, just posting a picture of seashells spelling out 8647, which is at most, at most unambiguous phrase, and what it means is just not going to get you there.

[B]

Hey, Bob, we can give you a concrete example of that. I mean, back in the 1970s when there was all the turmoil about Nazis marching in Skokie, for example, there was a group opposed to that that held a press conference and said, we will give $200 to anyone who kills or maims a member of the Nazi party. And then added, this is not a joke. Here are the bills. And so they got prosecuted for bringing a threat. And under those circumstances where they really stated that that was their intention and it was credible that that was an actual threat, that scenario would likely fit the test.

[A]

I have seen some confusion on social media between the true threat standard and the incitement to imminent lawless action standards. So the argument, Connor, that the government is making here is that James Comey willfully and knowingly made a threat on the President's life, but the incitement Timminent lawless action standard would implicate if he was inciting others to commit violence. Correct. And that's not what the government's arguing here.

[D]

That's right. The government is trying to argue that this is. That this constitutes a true threat, which for the reasons we've already talked about it doesn't words still mean things. They have a meaning both from the dictionary and from Supreme Court case law. This just isn't a true threat to the Same degree that it is not a hot dog. And second, it's also not incitement. Nico, as you mentioned, incitement is encouraging others to engage in lawless action and doing so in a way that is, that is likely to produce it. This, this isn't that.

[B]

And likely to produce it eminently. Right. I mean, and if you compare, for example, seashells on a beach to the president's speech in 2020 before, you know, the, the mob attacked the Capitol and he was saying things like we have to fight like hell or we're not going to have a country that comes closer, although you can argue whether it meets the test, but that comes closer to an incitement said than anything like this.

[A]

Yeah, one of the things that I've noticed is that when people want some cat, some example of speech to be unprotected, they'll just lob a label on it. Like this is this is harassment or this is incitement, or this is a true threat, or this is hate speech, or this is like shouting fire in a crowded theater. Often those arguments are totally untethered for the legal standards for those categories of unprotected speech. I'm not saying that hate speech is a category of unprotected speech, but you get the idea. Merely just saying something is a category of unprotected speech does not make it so.

[B]

But even the standard line about fire in a crowded theater, people will quote only half of it. And the actual quote from Oliver Holmes is people could not shout fire falsely in a crowded theater and cause a panic. So it has that eminency that later was clarified by the Supreme Court in later cases on incitement.

[A]

Bob, what do you make? This is a question from Ron Collins, the great Ron Collins, a former fellow here and editor of First Amendment News. Ron asked, what do you make of the fact that the prosecution of this so called threat was made almost a year after the shells were displayed on social media? And please explain to the audience what the quickest way is for this case to be dismissed. I should note that the acting Attorney General and FBI director said that they've been investigating this for something like 11 months. Bob, it, it called to mind the example from your book the Mind of the Censor and the Eye of the Beholder, where the FBI investigated the Kingsman song Louie Louie for a year and a half to see if there was any obscenity in it and having a hard time deciphering the lyrics only to find that those lyrics were in the US Copyright Office and that there was no obscenity in them.

[B]

That's right. Well, I mean, it indicates a lack of seriousness. It means that while the image that Comey posted in social media may have upset the President and may have caused him to lean on the Justice Department to do something about it, people obviously were not concerned that this was an actual threat if they sat on it for over a year. Again, it just indicates that they did not, in fact, perceive it as a real threat and really kept it in their back pocket to use it at a convenient time politically. And when the first ridiculous prosecution of Comey fell through, then this sort of moved up the line and became the. The second best option. In terms of Ron's other question about how to get rid of this in the most expeditious way, that is through the motion to dismiss this indictment, we

[A]

have one attendee, we actually have multiple attendees who asked, if Comey were to prevail on a selective prosecution motion, could he get the government to pay his legal fees? Haven't we seen something like that recently? Where, for example, General Flynn is in settlement talks with the federal government for the prosecution of him a while back. You also see, yes, I mean, you

[B]

can bring a claim for malicious prosecution, but it's difficult to sue the federal government. Flynn has the benefit of being able to sue a very friendly federal government that basically he's negotiating with members of his own team on that one.

[A]

This is known as sue and settle, colloquially. Right. It's where you sue a friendly member, someone who's on the team, and they settle in your favor because you're part of their team.

[B]

That's right.

[A]

Okay. I'm trying to look through the questions here to see if there are any more that we should get to before we move to the FCC with our remaining time. Oh, this is a good one. From an anonymous attendee. Do threats become truer in times of active threats like that at the White House Correspondence Dinner, I should note, I was actually at the White House Correspondents Dinner when the shooting. The threat wasn't against me. Nobody was trying to kill me, at least so far as I know. But does the fact that there have been other threats on President Trump's life matter in the context of analyzing the Seashell post?

[B]

No, I don't think threats become truer in retrospect. I mean, if this. This posting was happening over a year ago, you still have to measure this against the standard of what was the subjective intent in posting that image? Was there an intent to issue a threat? Was it credible for there to be a Threat and the fact that you can go through some historical analysis based on later events and say that, oh, now it's a serious threat, that wouldn't meet the standard.

[A]

Connor, or anyone who wants to take this last question on this, this issue, Ron asks, is there any difference in the First Amendment standard because the threat is against the. Or the alleged threat is against the president versus a different individual? Or would the true threat standard be the same regardless of the individual who's allegedly being targeted?

[D]

The beauty of the Constitution is that it applies equally to everyone, so the constitutional standard remains the same.

[C]

The only thing I'll add to that is that it does appear that the statutory standard is a bit more stringent when it comes to the President. When I was talking earlier about how the government can prove either that you intended the statement as a threat or you consciously disregarded a risk it would be taken that way. For these particular statutes that Comey is being charged under, the government has to meet that higher standard of showing that the defendant was purposely making a threat. It can't just meet that lower recklessness standard. And the only thing, I guess before we move on, one last point I'll make, because I don't know if anyone's made it is just in case people are wondering, why are these standards so strict? Why is it such a high bar for the government to meet? And the idea is that we just don't want to give the government too much leeway to decide what counts as a threat or what incites violence, because we know that the government will abuse that power to simply go after speech and viewpoints that it doesn't like. And when you look across the universe of our political discussions and debate, there's a lot of speech, right, that someone could plausibly argue might cause someone to commit violence at some point in the future. Right? Whether it's people calling ICE agents fascists, you have people saying that that incites violence against them, or calling all cops bastards. Or you might have people on the left who were pushing this idea of stochastic terrorism for a while and claiming that conservative rhetoric on topics like race and gender was inciting violence, particularly against vulnerable minorities. And so these are all valid claims to make in the arena of public debate. But if you give them the force of law, it becomes a real problem when the government can use this as an excuse. Because what happens is it does get applied selectively, and the government will just use these very loose standards to go after its own critics. Like I think we're seeing happening here right now with James Comey so it's just important to, as we say, keep the starch in these First Amendment standards and not make them ripe for abuse against people who criticize or dissent from the government orthodoxy.

[A]

Well, that's been Fire's work for all 27 years of our existence. I mean, one of the big challenges we've had on college campuses is keeping the starch in the harassment standard because we've seen that college administrators are willing to throw that phrase around to punish people for everything from an op ed to an exam question. And, you know, just because you call something harassment doesn't make it so. We have, you know, Supreme Court doctrine on this. And if you lower the standard for harassment, it's just going to be at the whims of whatever administrator decides that something has harassment. And that's often done subjectively and arbitrarily. So as Justice Neil Gorsuch said in a recent Supreme Court case, the First Amendment is no word game. You don't just get to throw around words that you think apply and make speech unprotected. There are legal standards that we need to tether these words to. And that's part of the role that we have here at fire. Let's move now to the fcc. As our listeners and participants in these webinars will know full well, the Trump administration and President Trump in particular have had their eyes on abc. And Jimmy Kimmel has often been called on by the president to be fired by ABC because he does not like Jimmy Kimmel's jokes. And ahead of the White House Correspondents dinner this past weekend, Jimmy Kimmel made a joke where he joked that Melania Trump had a glow like an expectant widow. And Melania complained about this joke. President Trump subsequently again complained about this joke and called for ABC to fire Jimmy Kimmel. And what happened? The next day, the broadcast licenses that ABC itself owns comes up for an early renewal. The FCC announces that they are going to do a review, an early review of ABC's broadcast licenses. I believe that they have a handful of them that they own themselves. Fortunately, here at fire, we have Bob on staff. Bob was the former chief counsel for the fcc, Chairman James Coelho. He is very familiar with how the FCC works and how the First Amendment is intertwined with what it does. Bob, how unprecedented is it for a licensee to come up for an early renewal like this? And what is the ostensible justification for the early renewal review?

[B]

Well, it's extremely rare and it's for a reason. I mean, licenses are granted for a period of years. They are reviewed at the end of an eight year period. They come up for early renewal only in very extreme circumstances. Say, for example, a licensee walks away from his station and stops broadcasting. He's not using the frequency he was licensed to use. That would be an example of the kind of thing that would justify a immediate action. Or for example, someone does an unauthorized transfer of control to another party who has not been licensed to broadcast. That's another example of the kind of thing that might, might come up. But to do it over programming, and in particular over particular programs or statements on a program that officials don't like, in particular the President or the chairman of the FCC, that is unprecedented. And this not only the First Amendment, but Section 326 of the Communications act says that the licensing power cannot be used to impose censorship.

[A]

But that's not what the FCC is arguing is the justification for the renewal. It's the fact that abc, which is owned by Disney, has some DEI practices. Isn't that right?

[B]

That's right. That is the fig leaf that the, the FCC is using. I think if you look at the interactions between the President and the chairman of the FCC and the networks over the last 14 months, it's evident that that is a transparent and mere smokescreen for what's really going on here. But even if that were an actual justification, and so far we just have a three paragraph order that talks about that, DEI is not an issue on which the has inherent authority. It is not a qualification for a broadcaster whether it has DEI initiatives of some kind or not. Historically, the FCC has had some authority over Equal Employment Opportunity or EEO rules. And it is, it's recognized that the FCC is not the Equal Opportunity Employment Commission. It has only been able to exert limited authority over hiring practices of licensees to the extent it might have some impact on diversity of programming. But even there, the courts going back 25 years have said that authority cannot be abused, that authority cannot be used for that purpose without running afoul of the First Amendment. And so even if this were the justification, and I don't for a minute believe that it is, it would not survive any kind of review.

[A]

Connor, we have one attendee who asks what implication does NRA v. Vullo have on this FCC matter? The idea being here that President Trump has repeatedly called on ABC to fire Jimmy Kimmel, is that an example of the sort of unlawful jawboning that was at issue in that case?

[D]

Sure. So Vullo made clear, and this is a verbatim quote, that the First Amendment prohibits the government from punishing speakers on the, on the basis of disfavor expression, right? Not verbatim, but close enough. So the idea what's happening here is that the government is going after ABC transparently because of it doesn't like what Jimmy Kimmel has to say on his nighttime television program. And that is emphatically where the First Amendment steps in. The First Amendment before all else is a bar on the government from subjecting companies and individuals to disfavored treatment because the government doesn't like what they have to say. And that's exactly what's happening here.

[A]

Bob Andrew asks why is the state licensing broadcasters in the Internet age?

[B]

Well, the short answer to that is read my book. I think it's chapter seven. I'd have to look back to and

[A]

go see if I have it here on the bookshelf so I can show

[B]

folks have a chapter on broadcasting and the history of licensing. It is sort of an anomaly when you think about it, that where we have a First Amendment that was adopted in part as a reaction to press licensing in Britain, we're licensing broadcasters. There are historic reasons for that. But the, and thank you for the plug, Nico. The fact is there's, there's a real question whether or not the justifications that led to broadcast licensing and regulation in the first place still survive. It simply continues to exist in the law more as a historical artifact. I suspect that if the justifications for regulating broadcast content under licensing were subjected to review by the Supreme Court today, we might get a very different answer. But it is simply a legacy regulation that has not yet been overturned. But that being said, in every recent decision for the past 40 years where the Supreme Court has had something to say about the FCC's authority to license and regulate broadcasting, it has said that power to regulate the content is extremely limited and nowhere near what Chairman Carr seems to think it is.

[A]

We've got so many questions here about FCC history and I fear, Bob, we're going to be taking up a lot of your time, but let's, let's go with it. One question is from David, who asks, it's true that this is unprecedented, but didn't fdr, in response to radio programming that was largely conservative, shorten all time periods for licenses? I think the implication here is haven't past administrations played with licenses in similar ways surrounding content that it didn't like?

[B]

Well, I'm not familiar with the specific scenario that you describe as shortening.

[A]

Well, I know jfk, John F. Kennedy, did something similar. He targeted Conservative radio.

[B]

Well, that's right. And it's been used by every administration. The problem is not one administration versus another, although some are worse than others. It's just the existence of this power gives those in control, those in power, a tool that they can use. And it's been used both by Democratic administrations and Republican administrations. FDR certainly had his critics. He subjected reporters he didn't like to tax audits, for example. But with respect to the FCC, the Democratic National Committee during JFK's administration used fairness Doctrine complaints to go after right wing radio preachers. And there was an entire program based on that. It's the campaign that led to the Supreme Court decision in Red lion versus the fcc. There have been attempts, but there were attempts by the Nixon administration who wanted to put the Washington Post stations into early renewal. During the newspapers coverage of the Watergate break in, you've seen various efforts by administrations to use the power of the fcc, and it's a reason why that power shouldn't exist.

[A]

Andrew asks a question about the Fairness Doctrine that you mentioned there, Bob. He asks, is the Fairness Doctrine still effect in effect? If so, isn't it time to abolish.

[B]

Was abolished in 1987. It was a doctrine that existed between 1949 and 1987 that required broadcasters to cover controversial issues of public importance and to do so in a balanced way. The problem was the Fairness Doctrine became a tool that was used by successive administrations to give the government excessive power over broadcasters. It was during the Reagan administration under Chairman Mark Fowler and then Chairman Dennis Patrick, that proceedings were started to look at whether or not these kinds of regulations could still be justified. The Commission at the time determined that the Fairness Doctrine was incompatible with the First Amendment and did away with it. And some corollary doctrines faded away over time after that. But it's what the current FCC is trying to hearken back to. Not the Fairness Doctrine specifically, but some of the corollary policies like News Distortion, that really were vestiges of the Fairness document.

[A]

Yeah, it's kind of interesting to see that the conservative project to get out of the content regulation business of broadcast media is now being kind of done a 180 on where you now have a conservative administration or at least a Republican administration that's supercharging the content regulation

[B]

and not just a conservative administration or a Republican administration, but the very same actors. Brendan Carr, before he was elevated to chairman in the current Trump administration, was constantly talking about how the FCC can't be considered to be the speech police and that this was A would be a terrible precedent to weaponize the licensing process for political purposes. The very things he is doing now because, you know, it tends to curry favor with the President.

[A]

We have a couple of questions that are in the same vein. We have Keith who asks if this administration takes away their license, what are the options for abc? John asked a similar question. At what point can ABC sue under the First Amendment? Is the early review of their license enough? Bruce asks if the FCC continues to overstep its authority, what are if any of the checks or consequences in place to address it? So it seems like people are like, okay, where does this go from here, Bob? Is it going to happen tomorrow that they potentially lose their license and ABC sue? What's going on?

[B]

This is just the beginning of a long, long process. It's not something that the FCC can do with the snap of its fingers. This is really just initiated a process where you will begin to have a hearing. What comes next in that process is the FCC has to issue what's called a hearing designation order that lists the grounds on which licenses may be reviewed. In doing that, I suspect the FCC would either have to lie about its motives or surface those issues that would not survive First Amendment review. This would be reviewed first by an administrative law judge who would take evidence and hear legal argument on that. Depending on the decision by the ALJ could then be reviewed by the entire Commission. You can guess which way the chairman might vote on that one. And then any decision by the FCC would be reviewable by the D.C. circuit or you know, perhaps another circuit court depending on where the case was brought. But the next venue would be the courts of appeals and ultimately the Supreme Court. We're talking about a multi year process at best. And just to give you a basis of comparison, when I argued the case over the wardrobe malfunction with CBS Back about 14 years ago, this was the

[A]

Janet Jackson nipplegate scenario.

[B]

Yes, that case, over a single fine, lasted for eight years from 2004 to 2012. And so by the time this actually turns into a serious proceeding, this administration will be gone.

[A]

Connor, Aaron, Bob, any of you guys can take this. I'd like to hear from all of you on this. Challenging this early renewal would require ABC to have a backbone right to defend itself. We haven't seen profiles encourage from media companies or many other companies during this administration. Law firms being accepted, certain law firms being accepted, Harvard being accepted. Do we think that ABC will actually stand up for itself if they there are any legs to this early renewal review? It has settled with the Trump administration once, right. When the George Stephanopoulos issue.

[D]

So I think in each time there's always a risk reward calculation that the general counsel and the board of directors and the, and the C suite are going to have to do of whether it's worth it to fight. And I think, unfortunately, what we've seen a lot of in the last year is when the administration goes after, whether it's media companies or law firms, they decide that the more prudent financial path is just to do what the administration wants and continue boosting those quarterly profit numbers here. And I'd be very interested in Bob's take as well. My understanding is that if ABC actually were to lose these broadcast licenses, that would have a pretty hefty monetary impact on abc. So I'm not sure this is a fight they can afford to back down on. I think the financial impact of losing this battle and capitulating here would be quite significant on ABC and Disney.

[B]

I think that's right. And you know, keep in mind that the FCC has the licensing power that it can use to exert pressure. And more often than not, broadcasters are likely to give in to that pressure. The FCC is an agency that was built for jawboning. There's even an expression that relates to it, and that's called regulation by raised eyebrows. And it can be nothing more than a speech by a commissioner or these days a social media post or whatever that can condition behavior. But the more serious the exercise of power, the more likely you're going to see resistance to it. And that is so far Brendan Carr has been careful to avoid any kind of official actions. And as a result, you will see broadcasters caving into that and disappointing with disappointing frequency. But here where you're threatening the licenses, you're bringing in existential threat, you see the likelihood of standing up to that. And ABC so far in its public comments saying that it is going to follow the procedure and stand on its rights and defend itself. And as for the reasons that Connor pointed out, the financial implications of that are very different from the other cases in which, say, ABC previously settled a frivolous lawsuit. I think here, when you see the process go through with both at the commission and at the courts, once you have to deal with serious legal arguments and facts of the matter, then the frivolousness of the FCC's action becomes readily apparent. And as I say, this is going to play out over time.

[A]

Hasn't the regulation of broadcast media always been a frustration for First Amendment advocates? Ever since the yearly statutes authorizing the FCC for example, I have a book coming out early next year and I did a lot of research and Bob, you lived it. Surrounding the advent of the Internet and the lengths that First Amendment advocates went to to ensure that broadcast standards weren't applied to the Internet. And I know we have some cases from the middle part of the 20th century that said that the First Amendment standard for broadcast communications is lower than it would be for print communications, for example, using a sort of scarcity argument in many cases that probably doesn't hold as much water today as it did in the past with the advent of cable news and podcast and so many other forms of media. But these, these standards still exist.

[B]

Ostensibly, each new technology has had to win its First Amendment rights. And part of the problem was that early on in the 20th century, when First Amendment jurisprudence was really just getting developed, broadcasting came along and courts didn't know what to do with it. And Congress passed the Communications act, which tended to institutionalize a lower level of protection. Since then, each new technology has had to win its First Amendment rights. I argued the first case to give full First Amendment rights to cable television, for example, and was involved in the cases involving the Internet. But broadcasting is lower level of First Amendment protection, which has been chipped away at over time, is one that still exists by virtue of the fact that the Communications act sort of froze it in amber and froze it in the law so that it will take a concerted challenge to change that status or Congress could change its mind.

[A]

I was talking with former ACLU Executive director Ira Glasser, who was the executive director of the ACLU when the ACLU challenged regular speech restrictions on the Internet, the Communications Decency act most notably. And he said that early laws like cement, if you let it sit too long, it hardens. And so that's why the ACLU felt in those early years of the Internet that it needed to act quick so that you had the full kind of panoply of First Amendment rights applied to the Internet in the way that they didn't and were allowed to harden for broadcast communications.

[B]

That's exactly right. And the FCC or Congress was trying to impose the same standard on the Internet that existed for broadcasters. It was trying to institutionalize the equivalent of the FCC's broadcasting decency standards before the Internet. And so when the Supreme Court in 1997 decided Reno vs. ACLU, it was the first time in our history that with a new technology, the Supreme Court, when it looked at it, granted that new technology full First Amendment rights. It hasn't happened for cinema, hadn't happened for broadcasting or cable, but the Internet was different and it was courted full First Amendment protection from the outset.

[A]

Yeah. And that's something that we're going to see play out here soon with artificial intelligence as well as those cases make their way through the courts. And it's something that Fire is very attentive to. We have a smart question from an anonymous attendee asking, assuming Humphrey's executor is overruled, won't we get even more FCC censorship as it loses its nominal independence? Barring the SCOTUS revisiting the delegation doctrine, what can be done to avoid content based regulation under vague licensing standards? The attendee has another follow up. Say re Humphreys executor, what executive branch due process can be expected from a wholly presidentially controlled agency post Humphreys executor? Humphreys executor is the case, if I'm not mistaken, that allows for these independent agencies to operate separate from close executive control. More or less, Right?

[B]

That's right. It's a new New Deal era precedent that speaks to the administrative state and speaks to whether or not regulatory agencies are in fact independent regulatory agencies. They're supposed to be creatures of both the executive and of Congress. And there are arguments both ways. I mean, the rise of the administrative state has been a significant problem. It's one of the things that has given the FCC and other agencies, agencies greater authority over more aspects of life. But the downside is that if you make them more political, you subject them to direct political direction, as both the chair of the FCC and the FTC seem to be implementing, then you have this ability to abuse executive power, which means the courts need to step up and put a check on how far these agencies can go, particularly, particularly when they're regulating things like media and speech.

[A]

Yeah, Doug. Doug has a note here. Doug Regan has a Note here. In 2025, the FCC scrubbed the word independent from its website after a contentious hearing. Does this act have any impact on its remit and reach in the current circumstance? So I'm assuming here what the administration is trying to do is say, no, we are not an independent agency. We are an arm of the executive branch and can, can, can execute on executive branch policy.

[B]

It doesn't have a separate legal effect, but it was pretty funny at the time because the change in the website was made during an oversight hearing when one of the members of Congress asked the chairman whether or not the FCC was independent or whether or not it was an arm of the executive. And during the course of that very hearing someone at the FCC changed the website.

[A]

Aaron, do you have any thoughts on the past year and a half of FCC action slash jawboning?

[C]

I don't think we have anything to worry about because Brendan Carr said that the FCC does not have a roving mandate to police speech in the name of the public interest. Oh wait, sorry, that was three years ago before he was in power as chairman.

[A]

Yeah, it's funny what power will do to folks. Just make them do a complete 180 on the positions that they held before. So I think with that we are going to wrap things up. I want to thank everyone for attending and for your excellent questions and if you enjoyed this format. It's a format we do every month with members of FIRE, so if you donate $25, you can become a FIRE member and you'll get invited to these monthly webinars which are driven by your questions. This was a quick Fire Reacts webinar where we're reacting to the news of the day, but most of these webinars are us just hopping on and answering whatever question you might have that is free speech related. And again, those are usually only available for Fire members and incentive to donate that $25. And to get access. This FHIR webinar is available to the public. We're going to post it as a podcast on my channel, the so to Speak, the Free Speech Podcast. You can get that wherever you find your podcasts. Again, the title is so to Speak, the Free Speech Podcast. You search for that here, in a couple hours, you should be able to find this recording. I also want to remind folks that in November we are having a big free Speech conference. If you want to get more involved in the free speech movement, I urge you to attend. The conference is taking place November 4 through 6 in Philadelphia. It's a community of free speech advocates, people who are just free speech curious. We urge you to come out and engage with these issues a little bit more. And until next time, I thank you all again for listening and I hope to see many of you next month at our next monthly webinar. Thank you.