An hour before Jimmy Kimmel returned to his show last night, Trump posted: “I can’t believe ABC Fake News gave Jimmy Kimmel his job back. … He is yet another arm of the DNC and, to the best of my knowledge, that would be a major Illegal Campaign Contribution. I think we’re going to test ABC out on this. Let’s see how we do. Last time I went after them, they gave me $16 Million Dollars. This one sounds even more lucrative.”

This, in my judgment, is incredibly alarming from a First Amendment and Election Law perspective. 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. Federal campaign finance law has a longstanding explicit “media exception” to its prohibitions, excluding from its coverage “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate” 52 U.S.C. § 30101(9)(B)(i). 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. The idea that the President of the United States would explicitly go after a media company in an effort to secure a “lucrative” settlement just because the media company engages in speech critical of the President is extremely antithetical to how a system of self-government with free elections is supposed to work.

The Wall Street Journal, which is not “owned or controlled by” the RNC any more than ABC or the New York Times is “owned or controlled by” the DNC, has its coverage of Trump’s threat as part of its story on Kimmel’s return.