Is this a free speech crisis?
Most people have a line for how far is too far when it comes to matters of speech. The line that the US government drew in 1969 was “incitement to imminent lawless action” (we usually say “incitement of violence”. It would be very rare to find someone who disagrees with the notion that this type of speech should be illegal, as qualifying speech would need for the speaker to intend to incite unlawful behavior, know or intend for it to happen imminently, and for the speech to be likely to produce that unlawful action. Most people agree that would be a bad thing to allow.
In the wake of Charlie Kirk’s assassination, free speech has come to the forefront of many peoples’ minds. People have lost their jobs for posting disgusting statements to social media, or for saying uncouth and/or untrue things on television. Many on the left accuse the right of engaging in “cancel culture,” an interesting accusation from those who claimed there was no such thing while doing it to the right. Jimmy Kimmel was the latest to face an interruption to his job (as I understand it, his show is indefinitely suspended, not officially ‘cancelled’ as of yet), after making a statement during his show. I want to take a look at this example in detail as since it happened its gotten a lot of attention, and I’ve noticed a lot of people expressing worry over free speech in America in light of this.
To begin, let’s talk about free speech. When we say free speech, we can be talking about one of two things. First, there is the first amendment right, what we might call the right to free speech, or free speech under the law. This would mean that the government cannot arrest or take legal action against you on the basis of your speech (barring the incitement exception mentioned above). Under the law, you are allowed to say whatever you want, no matter how wrong or gross it is. Second is what we might call a culture of free speech. This would be a culture that is open to the expression of ideas and dialogue, where people can say what they want without fear of reprisal from employers, co-workers, family, friends, acquaintances, etc. A free speech absolutist in this sense might say that someone should be able to say truly whatever they want and suffer no consequence as a result. That person is very rare, as nigh everyone has a line where at the least they personally would cut off contacts with a person who expressed an exceptionally depraved opinion.
So which of these types of free speech are we talking about here, or are we talking about both? For the most part, both the “cancel culture” of the last few years and the recent Kirk-related firings have been pretty clearly of the latter variety. Employers have chosen to fire their employees based on things they said which the employer does not approve of. In the vast majority of these cases, I don’t think anyone would argue these are violations of the right to free speech. However, in the case of Jimmy Kimmel, people do seem to feel that it is a violation, and so it might be worthwhile to take a look at exactly what is going on in this instance.
It was reported by multiple outlets on the evening of September 17 that Kimmel’s show was suspended indefinitely after he had made comments regarding the Kirk assassination the previous nights. On Tuesday night he said the following: “We hit some new lows over the weekend with the MAGA gang desperately trying to characterise this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it.” While he made a few other comments on the preceding night, this one seems to be the heart of the matter. The next day after people were already in line waiting to be let in to be part of the live audience, Disney made the call to suspend the show indefinitely.
There were a few factors at play in the decision. To start, Nexstar Communications and Sinclain Broadcast Group, each of which own a number of ABC affiliate stations, announced they would be pulling Kimmel’s show from broadcast on their stations. It was shortly after Nexstar’s announcement that Disney announced the suspension. Additionally, Hollywood Reporter stated that advertiser calls also were beginning to come in. Between pulled ads and the show being dark on perhaps the majority of their affiliates anyway, they felt they needed to take action. The final player in this is the FCC, and I think this is what’s making people feel like this is a “right to free speech” issue. So, here is what happened. Brendan Carr appeared on Benny Johnson’s show and made a few statements that apply at least in part to Kimmel. The first was that there “is a very concerted effort to try to lie to the American people” about Kirk’s assassination and Kimmel’s statements played into that. He mentions that to maintain a broadcast license, stations need to be operating in the public interest. He says they can do it “the easy way or the hard way”, and that either stations can clean up their own act, or the FCC will need to get to work, and he specifically mentions Kimmel by name in that regard. The main thrust of Brendan Carr’s argument is that the intentional distortion of news is inappropriate for a broadcast television show, because it is against the public interest to do so. So if you feel this is a first amendment issue, this is the crux of it.
In terms of what actually happened, the FCC chairman indicated the FCC might take some sort of action. Following this and affiliates and advertisers pulling out, ABC dropped the show. Let’s suppose that this hadn’t happened, and the affiliates and advertisers stay on board and Disney tells the FCC chairman to stuff it. It’s all conjecture, but its easy to see a scenario play out where the FCC imposes some sort of fine or challenge to license renewal (Carr wasn’t clear on exactly what action they might take, but these are things the FCC has done in the past) due to public interest not being served. These actions would likely be challenged in court and maybe if established law is not clear enough, it could potentially have wound up at the Supreme Court level, and we’d get an official decision on whether or not it falls under first amendment protection. However, I don’t think it would get that far, because I don’t think the FCC could exist at all if this sort of thing is under first amendment protection.
If you think that “serves the public interest” is a vague requirement that could easily be used to engage in censorship of speech, you’re not alone. There have been those who criticize the FCC’s regulatory powers as a form of censorship since it’s creation. So, it seems, the argument to be had here is whether or not the FCC should exist, as determining whether or not something is in the public interest is intrinsically in opposition to free speech, as a broadcaster would by definition not be allowed to say something on air that is against the public interest in the view of the FCC. Personally, I’d be all for abolishing the FCC, as it is just one of many government bodies that I really don’t think we need. You’re free to disagree of course, but if you do, I don’t think you can object to the situation with ABC and Jimmy Kimmel. If the FCC can legally exist, then definitionally there must be an exception to free speech in regard to broadcast speech that they discern to be outside/against the public interest. And the thing is, what Carr said wasn’t isolated to Kimmel’s show, it seems clear that while he had Kimmel in mind, he is seeing a broader issue that he believes the FCC should address. Whether that’s good or bad depends on your perspective I suppose, but I certainly don’t think this is new. The FCC has always had this power.
On some level in the very near future this is all going to be immaterial if it isn’t already. The FCC is a dinosaur, a creature of a bygone era that will soon exist only in our memory. Traditional television is hanging by a thread, and we’ve largely already moved on to internet-based media. The fact is, we’re no longer bound by limited broadcast frequencies that limit how many people can get their voice out there. Anyone with a camera, microphone, and an internet connection has the ability to “broadcast” their voice to anyone who wants to listen. And as it’s not taking place in those regulated airwaves, the FCC has no say. Nothing is stopping Jimmy Kimmel from starting his own independent show and broadcasting it on Youtube, or Rumble, or X, or some other platform, or even his own platform. There’s even a clear example of someone leaving broadcast news and becoming even more popular in Tucker Carlson. Ultimately, this could in theory be good for Jimmy Kimmel, but that all depends on whether or not there is an audience that actually wants to hear what he has to say.
There’s a bit from a Hollywood Reporter article that is deserving of comment to my mind. Here’s the quote:
‘But let’s take a close look at this section: “….the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them….”
As part of a sentence, this is so blurry that your eyes cross trying to get it. Kimmel doesn’t actually say “this kid” was “one of them.” You could read it a different way: Robinson wasn’t MAGA, and therefore MAGA is out there trying to characterize him as something else. Or even: Who knows if Robinson was or wasn’t MAGA, either way MAGA is trying to score points based on his politics.’
This is the statement that Kimmel was actually being asked by his employer to apologize for, and allegedly this read is his “clarification” of what he was saying that he was going to offer, without apology. In my view, this explanation is obtuse, what he said had a very clear implication that the killer was indeed someone from the MAGA camp. You absolutely cannot read it the way the writer of that article claims you can read it, unless you are just willfully making the words mean something to you other than what they clearly mean. My “eyes cross” only when I try to “get” this bizarre alternative explanation. The simple truth is, whether or not he intended to say it (something no one can possibly know for certain), he did say it, and that is exactly why he should correct it and apologize for it, either as a lie or as a misstatement.
My own position is nuanced. Insofar as his employer is suspending him for being unwilling to correct and apologize for the factually incorrect statement he made, I am completely in support of his suspension. It is hard for me to say that I think Kimmel’s right to free speech under the first amendment has been violated because he still has the right to say whatever he wants. He is not himself facing a government fine or imprisonment because of his speech, he was removed from his show at the decision of his employer perhaps in part because of some implied pressure from the government. No one has a right to have their speech broadcast on television, or if I do have that right I’d like to know who I talk to so that I can have my own TV show that I am evidently owed. I don’t think the FCC should have regulatory power or exist at all, but it does. That pressure is the only thing that makes this murky at all, and its hard to say whether or not this same outcome would have happened without it. In that case, it would be a clear question over cultural free speech.
Cultural free speech is a whole other matter, and one I am likely to write about in the near future.