Even before President Trump threatened to sue the BBC for a billion dollars, there were serious concerns that he and his allies are using government power and regulatory threats to suppress free speech and the media.

In September, talk-show host Jimmy Kimmel was taken off the air by The Walt Disney Company, owner of the ABC television network, as a result of comments he made following the shooting of activist Charlie Kirk. Kimmel’s comments included that the ‘MAGA [Make America Great Again] gang’ was trying to ‘score political points’ from Kirk’s killing.

In the days after the show aired, Federal Communications Commission (FCC) Chairman Brendan Carr appeared on a podcast where he commented that companies ‘can find ways to change conduct, to take action […] on Kimmel or […] there’s going to be additional work for the FCC ahead.’ The podcast was released hours before Kimmel’s suspension was announced. Carr has since denied the suggestion that he was threatening that companies might lose their FCC licences if they continued to air Kimmel’s show.

In July, President Trump settled a lawsuit involving CBS in respect of allegations that the network had deceptively edited an interview with former Vice President Kamala Harris. CBS – alongside many legal scholars – described the lawsuit as meritless and there were reports that the matter was settled so as not to affect a $8.4bn merger between its parent company, Skydance Media, and Paramount – a deal that received FCC approval in the same month. The settlement will see Paramount pay $16m to Trump’s future presidential library, but doesn’t include an apology.

The companies involved didn’t respond to Global Insight’s requests for comment. George Cheeks, Chair of TV Media at Paramount, reportedly told investors that companies often settle litigation to, for example, ‘avoid the high and somewhat unpredictable cost of legal defense […] and the disruption to business operations.’

Jonathan Hafetz, an officer of the IBA Human Rights Law Committee, says the President is wielding government power to force media companies to suppress speech that his administration doesn’t like. If media companies facing direct or indirect pressure from officials to censure certain speech don’t bring legal challenges over such attempts at coercion, Hafetz’s view is that the US Constitution’s First Amendment will amount simply to ‘words on a page’.

This is why the public has a key role to play, says Hafetz, who speaks in a personal capacity. He highlights that when Kimmel’s show was reinstated, it followed a reportedly substantial number of consumers cancelling their subscriptions to Disney’s streaming services in protest. ‘The citizenry has responsibility to raise pressure on the media companies, including through imposing financial consequences that affect their bottom line. That, I think, will be important in persuading large media companies to do the right thing and resist the erosion of the First Amendment,’ he says.

Earlier in November, the UK’s BBC apologised for giving a ‘mistaken impression’ through its editing of a 2021 Trump speech but said it would fight a defamation case brought by the US President. The former BBC Director General Tim Davie, who resigned in November, told the corporation’s staff that ‘we have made some mistakes that have cost us’ but ‘we’ve got to fight for our journalism.’

President Trump has also filed a $15bn defamation lawsuit against the New York Times, two reporters and publisher Penguin Random House over articles that he alleges were ‘false, malicious, defamatory, and disparaging’. Although a federal judge threw out the original case, Trump submitted an amended complaint in October. The New York Times said it was an ‘attempt to stifle independent reporting’.

Steven Richman, Chair of the IBA Bar Issues Commission, highlights the distinction between public and private sector speech in the US, emphasising that the First Amendment states that ‘Congress shall make no law […] abridging the freedom of speech, or of the press.’ In other words, he says, ‘there is a different set of rules when it comes to private sector regulation of speech, with the broader public protections not necessarily applying.’

Richman, who speaks in a personal capacity, adds that even public speech can be regulated to an extent, such as when and where it may occur, provided such regulations are ‘content neutral.’ However, ‘when speech is regulated as to content, stricter standards apply in ensuring that measures to protect a legitimate state interest are narrowly drawn,’ he explains.

In Richman’s view, it becomes problematic when the force of government is used outside the normal process of law and due process to make threats against individuals. ‘For example, where the full force of an Administration, regardless of party, is brought to bear on private actors, without following established procedures under the rule of law, it becomes political, not legal, and that is what poses the threat to the institutions,’ he says.

‘There are ways to resolve […] whether or not speech has gone beyond what is lawfully permissible, whether in terms of content or regulation; there are processes that should be followed,’ explains Richman. ‘For example, there is a law of defamation.’ He adds that ‘legal process should be kept separate from gratuitous political commentary by those in power to avoid any appearance of undue influence so that the institutions are allowed to function as they should.’

President Trump has also suggested that news reporters who cover his administration negatively have broken the law. ‘They’ll take a great story and they’ll make it bad,’ he said. ‘See, I think that’s really illegal.’ There is no legislation prohibiting journalists from running a story that the President believes to be ‘great’ and making it appear ‘bad’.

Susan Kemp, a Member of the IBA’s Human Rights Institute Council who speaks in a personal capacity, points to this rhetoric of criminalising speech as especially worrisome. ‘It’s not helpful to talk about hate being a crime in itself. It can be connected to an underlying violent offence, incitement or a public order offence,’ she says. ‘It’s the duty of the state to facilitate freedom of expression, protest and thought which are cornerstones of democracy.’ The ways in which the state can lawfully restrict these are very limited, she says, ‘and even then, there is a range of potential state responses to limit speech. Only in the very, very last resort can it be made a criminal offence.’

Kemp highlights that President Trump’s threats against the media have mostly remained just that – threats. But she describes such rhetoric as a ‘precursor’ to societies turning authoritarian as it’s ‘shrinking the space for speech and […] shrinking the space for criticism of the president, of his party and of any allies of his.’

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