Welch's Rarebits (cont.): Should Kimmel sue? What would Thomas and Alito do.

I read an opinion piece in Politico4 that argued Kimmel would have a very good chance of winning in the Supreme Court should he sue Trump, Carr, the FCC, and Disney and ABC. My interest was tweaked and I decided to poke around.

Chatgpt and Gemini were both quite useful in locating quotes, but I checked the validity of each one and read through each case. I think that if Kimmel, or anyone else, for that matter, who’s job was lost because they said something offensive about the Trump administration, would stand a very good chance of winning, assuming it ever got to the Supreme Court. I suspect that merely the act of filing a lawsuit would force a settlement in their favor as Trump cannot afford to be deposed.

Deposition is what led to Clinton’s impeachment.The president is not immune from civil lawsuits while in office thanks to the ruling in Clinton v. Jones, 520 U.S. 681 (1997). The Court held unanimously (9–0) that a sitting President is not immune from civil litigation for acts done before taking office and unrelated to the presidency. “We have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity. It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.” (Clinton v. Jones, 520 U.S. at 694–95) The ruling cleared the way for Paula Jones’s lawsuit to proceed while Clinton was President. In the discovery process, Clinton gave testimony that led to revelations about his relationship with Monica Lewinsky, which ultimately contributed to his impeachment in 1998.

Clinton v Jones must be distinguished from Nixon v Fitzgerald 1982 ini which the president was given immunity from civil lawsuits for any official acts. And this was, of course, followed by Trump v. United States (603 U.S. 593, 2024) which muddied the waters even more by declaring even former presidents had complete immunity for official acts while in office. Clinton and Jones had done their thing before he became president.

Here’s a nice little chart showing the distinctions:

Now back to our regularly scheduled issue. The concept of government coercion to suppress speech is a key area of First Amendment jurisprudence, and Supreme Court justices have frequently addressed it. The central principle is that while the government can engage in its own speech and even forcefully criticize certain views, it cannot use its power to coerce or intimidate private parties into censoring or punishing disfavored expression on its behalf. The conservative justice are on record making statements condemning government coercion in suppressing speech so they may find themselves in the awkward position of wanting to help Trump while having their previous decisions thrown back at them

Examples:

““government officials may not coerce private entities to suppress speech.” Justice Samuel Alito made that statement in his dissenting opinion in the Supreme Court case Murthy v. Missouri, which was decided in June 2024. The case involved allegations that government officials had coerced social media platforms to suppress speech related to the COVID-19 pandemic and the 2020 election. While the majority of the Court ruled that the plaintiffs lacked standing to sue, Alito's dissent argued that the case was "one of the most important free speech cases to reach this Court in years." He argued that the actions of federal officials in pressuring social media companies had all the "hallmarks of coercion" and amounted to a "covert scheme of censorship." He believed that the Court's decision to dismiss the case on a procedural issue (standing) was a mistake because it allowed "the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think."

Justices Thomas and Gorsuch also dissented. Justice Clarence Thomas's views on government coercion of speech are consistently rooted in a broad and firm defense of the First Amendment. He has expressed deep skepticism about government actions that pressure or intimidate private entities to suppress certain viewpoints, arguing that this indirect suppression is just as dangerous as direct censorship.1

Some cases related to government coercion to suppress speech.

Near v. Minnesota (1931): This case is a foundational pillar of free press and free speech. The Court struck down a state law that allowed officials to shut down a newspaper as a "public nuisance" for publishing "malicious, scandalous and defamatory" content. The ruling established a strong presumption against prior restraint, meaning the government has a very high burden to justify censoring something before it is published.

Bantam Books, Inc. v. Sullivan (1963): This case is a crucial precursor to the modern debate over government coercion. The Court found that a Rhode Island commission's practice of sending lists of "objectionable" books to distributors with a warning of potential prosecution was an unconstitutional form of "informal censorship." The Court held that even without a direct legal order, the government's threats and intimidation were a form of suppression that violated the First Amendment.

Nixon v. Shrink Missouri Government PAC (2000) was a case about campaign finance limits. In his dissent Thomas provided a ringing endorsement of free speech protection.Thomas began by stating that political speech is the "primary object of First Amendment protection." He argued that a self-governing people depends on the free exchange of political information, and this exchange should receive the "most protection when it matters the most—during campaigns for elective office." He champions an interpretation of the First Amendment that allows for virtually unlimited spending in political campaigns, believing that the marketplace of ideas, not government regulation, should govern political discourse.

National Rifle Association v. Vullo (2024): In this unanimous decision, the Court reaffirmed the principle of Bantam Books. The justices found that a New York state official's alleged threats of enforcement actions against private entities that refused to disassociate from the NRA could be considered unconstitutional coercion. The Court drew a clear line between a government official's right to persuade and their inability to coerce private parties into suppressing disfavored speech. Justice Gorsuch said, “Today we reaffirm a well-settled principle: “A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf...“Ultimately, the critical” question is whether the plaintiff has “plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech.”

Citizens United v. Federal Election Commission (2010) Speech is not less free because of the speaker's identity: The Court asserted that "political speech is indispensable to a democracy," and this is no less true when the speech comes from a corporation rather than an individual. They rejected the idea that the government has a compelling interest in limiting the speech of corporations to prevent the "distorting effects of immense aggregations of wealth." In his concurrence Justice Thomas raised the peripheral issue of government or private entity retasliation for speech (in this case conservative speech) writing: I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection

And in other news:

“[Alito] wrote the court’s opinion in Saxe v. State College Area School District (3d Cir. 2001) striking down a public school’s anti-harassment policy. Alito asserted that there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs.”3 BUT on the other hand in the controversial Snyder v. Phelps (2011), about anti-gay protests at a military funeral he wrote, ““Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”

I couldn’t find much from Thomas that laid out his feelings with regard to whistle-blowers or others who might have been fired for taking political positions outside of their normal duties with one exception. In a speech Thomas came down hard on the First Circuit for siding with a school district that fired a teacher for making what they said were homophobic and racist comments on her social media. In what would seem an ideal parallel to Kimmel although from the opposite political spectrum, Thomas said, ““This case is the latest in a trend of lower court decisions that have misapplied our First Amendment precedents in cases involving controversial political speech,” Thomas wrote in a statement. If left unchecked, this number will likely increase, Thomas warned, and in many cases, government employers may find it convenient to attempt to restrict “disfavored or unpopular speech in the name of preventing disruption.”5 The case was not granted cert for other reasons so we don’t know how the sextuplet would have ruled.

Fascinating

Welch's Rarebits (cont.)

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Friday, September 19, 2025

Should Kimmel sue? What would Thomas and Alito do.

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