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<\/a><\/figure>\n\n\n\nTo begin, let\u2019s 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.<\/p>\n\n\n\n
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 \u201ccancel culture\u201d 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\u2019t 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.<\/p>\n\n\n\n
It was reported by multiple outlets on the evening of September 17 that Kimmel\u2019s show was suspended indefinitely after he had made comments regarding the Kirk assassination the previous nights. On Tuesday night he said the following: \u201cWe 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.\u201d 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.<\/p>\n\n\n\n
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\u2019s show from broadcast on their stations. It was shortly after Nexstar\u2019s 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\u2019s making people feel like this is a \u201cright to free speech\u201d issue. So, here is what happened. Brendan Carr appeared on Benny Johnson\u2019s show and made a few statements that apply at least in part to Kimmel. The first was that there \u201cis a very concerted effort to try to lie to the American people\u201d about Kirk\u2019s assassination and Kimmel\u2019s 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 \u201cthe easy way or the hard way\u201d, 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\u2019s 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.<\/p>\n\n\n\n
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\u2019s suppose that this hadn\u2019t happened, and the affiliates and advertisers stay on board and Disney tells the FCC chairman to stuff it. It\u2019s 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\u2019t 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\u2019d get an official decision on whether or not it falls under first amendment protection. However, I don\u2019t think it would get that far, because I don\u2019t think the FCC could exist at all if this sort of thing is under first amendment protection. <\/p>\n\n\n\n
If you think that \u201cserves the public interest\u201d is a vague requirement that could easily be used to engage in censorship of speech, you\u2019re not alone. There have been those who criticize the FCC\u2019s 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\u2019d be all for abolishing the FCC, as it is just one of many government bodies that I really don\u2019t think we need. You\u2019re free to disagree of course, but if you do, I don\u2019t think you can object to the situation with ABC and Jimmy Kimmel. If the FCC can legally exist, then definitionally there must<\/strong> 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\u2019t isolated to Kimmel\u2019s 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\u2019s good or bad depends on your perspective I suppose, but I certainly don\u2019t think this is new.<\/em> The FCC has always had this power.<\/p>\n\n\n\n On some level in the very near future this is all going to be immaterial if it isn\u2019t 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\u2019ve largely already moved on to internet-based media. The fact is, we\u2019re 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 \u201cbroadcast\u201d their voice to anyone who wants to listen. And as it\u2019s 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\u2019s 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.<\/p>\n\n\n\n There\u2019s a bit from a Hollywood Reporter article that is deserving of comment to my mind. Here\u2019s the quote:<\/p>\n\n\n\n \u2018But let\u2019s take a close look at this section: \u201c\u2026.the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them\u2026.\u201d <\/p>\n\n\n\n As part of a sentence, this is so blurry that your eyes cross trying to get it. Kimmel doesn\u2019t actually say \u201cthis kid\u201d was \u201cone of them.\u201d You could read it a different way: Robinson wasn\u2019t MAGA, and<\/em> therefore MAGA is out there trying to characterize him as something else. Or even: Who knows if Robinson was or wasn\u2019t MAGA, either way MAGA is trying to score points based on his politics.\u2019<\/p>\n\n\n\n <\/p>\n<\/blockquote>\n\n\n\n This is the statement that Kimmel was actually being asked by his employer to apologize for, and allegedly this read is his \u201cclarification\u201d 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 \u201ceyes cross\u201d only when I try to \u201cget\u201d 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<\/strong> say it, and that is exactly why he should correct it and apologize for it, either as a lie or as a misstatement. <\/p>\n\n\n\n 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\u2019s 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\u2019d like to know who I talk to so that I can have my own TV show that I am evidently owed. I don\u2019t 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.<\/p>\n\n\n\n Cultural free speech is a whole other matter, and one I am likely to write about in the near future.<\/p>\n","protected":false},"excerpt":{"rendered":" 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 \u201cincitement to imminent lawless action\u201d (we usually say \u201cincitement of violence\u201d. It would be very rare to find someone who disagrees … Continue reading Thoughts on Kimmel<\/span> \n