This is the first in a new series we are starting that will examine a current news item from a Third Side perspective. Our goal with this new section is to strengthen and support the practice of taking a “third side” approach to navigating conflict in a more constructive, principled way. (To see what we mean by the Third Side, please see our Guiding Principles here.)
We know boards, executives, and advisors are facing difficult decisions in this time of heightened conflict and these decisions can be particularly challenging on issues that involve deep values and principles. We are hoping these posts will start a conversation about how third side strategies can help support principled public affairs engagement so please share your thoughts. This month, we will focus on Disney’s decision to suspend the Jimmy Kimmel Live! show in response to the Federal Communications Commissioner’s warnings and pressure from affiliate stations -- and then subsequently reinstate the show.
What Happened? In Kimmel’s September 15th monologue, he referred to the assassination of conservative activist and Turning Point USA founder Charlie Kirk, and said "We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them, and doing everything they can to score political points from it." In response, the Chair of the Federal Communications Commission, Brendan Carr, suggested that ABC and its local affiliates should take action to address Kimmel’s comments, which Carr said were intended to mislead the American public about the political leanings of the suspect in the shooting of Kirk.
Shortly after Carr’s remarks, Sinclair Broadcast Group and Nexstar Media, two ABC affiliates that also have merger approvals pending at the FCC, announced they would preempt Jimmy Kimmel Live! After the announcement by Sinclair and Nexstar, Disney indefinitely suspended Jimmy Kimmel’s show from airing. Disney then lifted the suspension on September 23rd. Sinclair and Nexstar initially continued to suspend the show even after Disney lifted its suspension but both affiliates reinstated the show on September 26th. See What to know about Jimmy Kimmel’s return to his late-night TV show
Support for Suspending Jimmy Kimmel Live!: Brendan Carr, the Chair of the FCC argued that television broadcasters “have a license granted by us at the FCC, and that comes with it an obligation to operate in the public interest.” Carr claimed that late-night talk show hosts are “enforcing a very narrow political ideology” and that is not in the public interest. After Kimmel's September 15th monologue, Carr said, “We can do this the easy way or the hard way .... These companies can find ways to change conduct and take actions on Kimmel, or there’s going to be additional work for the FCC ahead.” And the Center for American Rights filed a complaint with the FCC arguing that Kimmel’s comments spread false claims about the suspected killer and showed "reckless indifference or willful defiance of facts,” saying “it is no defense to say that Kimmel was engaging in satire or late-night comedy rather than traditional news.” See ABC Pulls Jimmy Kimmel's Show Indefinitely.
Opposition to Suspending Jimmy Kimmel Live!: After the show was taken off the air, Republican Senator Ted Cruz said, “I hate what Jimmy Kimmel said. I am thrilled that he was fired... But let me tell you: if the government gets in the business of saying, ‘We don’t like what you, the media, have said. We’re going to ban you from the airwaves if you don’t say what we like,’ that will end up bad for conservatives.” And Professor Richard Epstein wrote, “No license can be withheld because an applicant has views that are different from those of the head of the FCC or the president. Similarly, no license can be removed or suspended for the same reasons. These limits on executive power are entirely necessary to prevent the state from using its inordinate powers to target individuals or institutions it dislikes, or those who speak critically of it. And it is painfully evident that it cannot, therefore, even make threats to induce private broadcasters to submit to its commands, as Carr thought was within his powers.” Similarly, hundreds of actors signed a letter by the ACLU, opposing Disney's decision. The letter states, “Last week, Jimmy Kimmel was taken off the air after the government threatened a private company with retaliation, marking a dark moment for freedom of speech in our nation....In an attempt to silence its critics, our government has resorted to threatening the livelihoods of journalists, talk show hosts, artists, creatives, and entertainers across the board. This runs counter to the values our nation was built upon, and our constitution guarantees.”
The Third Side Approach: To be sure there are multiple approaches to navigating the suspension of Jimmy Kimmel Live! In this post, we are going to focus on one approach that highlights the third side in action. On September 24th, shareholders of Disney, ABC’s parent company, sent a letter to the company requesting documents that show how the company made the decision to pull Jimmy Kimmel Live! from the air, concerned that “the board and executives may have breached their fiduciary duties of loyalty, care, and good faith by placing improper political or affiliate considerations above” the best interests of the shareholders and the company. In the middle of what had become a heated divide, these investors are “going to the balcony,” a tool that Dr. William Ury suggests can help find a way to the third side in contentious situations. “Going to the balcony” means stepping back from a situation to gain perspective, assess, and develop an objective view of it, which can help identify what actions might lead to agreement on next steps. In the case of the suspension of Jimmy Kimmel Live!, instead of arguing about the politics of the situation, shareholders are going to the balcony by anchoring on fiduciary duty, which is an objective standard to which all boards and managers are held under the law. And to evaluate whether fiduciary duties have been violated in connection with the decision to suspend Jimmy Kimmel Live!, shareholders are first focusing on the process through which Disney made the decision (what factors did they consider), rather than the outcome of that decision. To be sure, this analysis of process can still lead to different conclusions about fiduciary duty but this is an encouraging first step toward finding a third side, and bringing down the temperature in a polarized situation. Disney Investors Seek Clarity on Kimmel's Suspension
Share Your Thoughts
This stuff isn’t easy. The more we talk and share best practices, the better we all will get at finding new ways to the third side, especially during these challenging times.
Let us know what you think: What third side practices can business leaders adopt? What were the most important factors influencing your decisions about whether to engage or not on the suspension of Jimmy Kimmel and the events that followed? Share your thoughts here.