President Donald Trump’s hints at bringing a new lawsuit against ABC appear to lack legal teeth, according to experts and recent judicial precedent.
Trump on Tuesday responded to Jimmy Kimmel’s return to airwaves by alleging that the late-night host “is yet another arm of the DNC” representing “a major illegal Campaign Contribution.”
“I think we’re going to test ABC out on this. Let’s see how we do,” the president wrote on Truth Social. “Last time I went after them, they gave me $16 Million Dollars. This one sounds even more lucrative.”
Trump has leaned heavily on the courts during his second term to challenge media outlets, but as of Wednesday night, the president’s legal team has not brought a new lawsuit against ABC, for predictable reasons, according to experts.
Brett Kappel, a campaign finance attorney with Harmon, Curran, Spielberg & Eisenberg, told Forbes that Kimmel’s on-air comments are “clearly covered” as protected speech by the Federal Election Commission’s media exemption and do not amount to campaign contributions, as Trump claimed.
While the FEC explicitly bars media corporations from directly contributing to campaigns, the media exemption specifically allows for broadcasting stations or periodical publications to publish “any news story, commentary, or editorial” that may influence an election, as long as an involved candidate or political party does not own the station or publication.
Election law scholar Ned Foley similarly wrote in a Wednesday blog post that Trump’s threat is “incredibly alarming” on First Amendment and election law grounds.
“Accusing ABC of being an arm of the DNC and its content as being an illegal campaign contribution is the equivalent of accusing any media outlet of engaging in prohibited speech simply for engaging in political commentary,” he wrote, pointing to the FEC’s media exemption. “There is no credible claim, despite Trump’s insinuation, that ABC is ‘owned or controlled by’ the Democratic National Committee, just as there would be no credible claim that The New York Times or any other liberal-leaning media outlet is.”
White House officials directed inquiries about a possible new lawsuit against ABC back to the president’s Tuesday statement on Truth Social.
The Supreme Court previously ruled in 1963’s Bantam Books v. Sullivan that government officials or bodies cannot leverage government authority to censor private parties.
“People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around,” Justice William J. Brennan Jr. wrote at the time. “It would be naïve to credit the state’s assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.”
And the court itself reaffirmed Bantam Books last year, when the National Rifle Association, defended by the American Civil Liberties Union, claimed a New York state official had violated the First Amendment by pressuring companies to end their ties to the NRA in the wake of the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida.
“Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf,” Justice Sonia Sotomayor wrote in a unanimous opinion for the court.
Trump does have a long history of suing media companies, including a handful of successful lawsuits filed on the 2024 campaign trail and since entering office in January.
In December of last year, as referenced in Trump’s Tuesday night statement responding to Kimmel’s return, ABC settled a defamation lawsuit brought by Trump against the network and anchor George Stephanopoulos for $15 million.
Paramount settled a lawsuit with the president’s legal team in July for $16 million regarding an interview with former Vice President Kamala Harris that aired ahead of the 2024 general election.
Though the White House technically lost a lawsuit brought by the Associated Press this spring, the president was still able to spin it as a win for his base by amending the way that all wire publications were included in the routine press pool rotations.
Still, a number of the president’s legal fights with the media remain unresolved or have been thrown out of court.
Earlier in September, a federal judge threw out Trump’s $15 billion defamation suit against the New York Times, although the decision did give Trump’s legal team a month to refile.
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And in July, the president brought a $10 billion lawsuit against The Wall Street Journal and owner Rupert Murdoch regarding the paper’s coverage of a letter, allegedly penned by Trump to disgraced financier and sex criminal Jeffrey Epstein, to be included in a book gifted to the latter for his 50th birthday.
