It is a Nice Idea
Free speech is a pain in the rear. Always has been. Always will be.
It is a nice idea. If you have freedom of speech, you have the right to say whatever is on your mind without fear of repercussions. But there is a rub. It also means the guy standing next to you has freedom of speech. That means he can say whatever is on his mind, even if you find it to be abhorrent, disgusting, threatening and maybe even dangerous.
The men who designed our government met in secret and wrote a historic document detailing the structure of the national state and enumerating the powers and responsibilities of its parts. When the document was made public, the people were not pleased. They demanded a guarantee of their rights be written into the document.
The revolutionaries a decade earlier had met in living rooms and tavern parlors. They circulated their thoughts in pamphlets and newspapers. Most of this was done in secret. They would have found themselves hanging from a British rope if they had been caught. They had no wish to fear a government again. The First Amendment to the U.S. Constitution was the result.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
What many people do not realize is that the amendment is a constraint on government. Not on individuals. Not on companies. That is one of the reasons the recent decision of Disney/ABC to take its late night host Jimmy Kimmel off the air created confusion.
Kimmel was suspended after making pointed remarks about the political fallout surrounding the murder of conservative activist Charlie Kirk. During his monologue, Kimmel criticized what he called the “MAGA gang” for allegedly trying to spin the narrative around the accused killer, Tyler Robinson.
“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.”
That line triggered backlash from conservative activists and FCC Chairman Brendan Carr, who appeared on a podcast and warned ABC, “We can do this the easy way or the hard way.” I’m from Chicago and that line sounds just like the gangster Al Capone to me. As a threat from the government regulator overseeing ABC’s station licenses, this seems over the constitutional line. Even two Republican Senators, Ted Cruz of Texas and Rand Paul of Kentucky agree. Hard to believe this is now the second time I find myself agreeing with Cruz.
Donald Trump put his two cents into the mix. Of course. Of the TV reporters he said:
“They’re 97% against me; they give me only bad publicity and bad press. I mean, they’re getting a license. I would think maybe their license should be taken away. It will be up to Brendan Carr.”
Add it all up and you can make the case that the Trump administration put unconstitutional pressure on Disney/ABC because they objected to the content they saw. In other words, the same Republicans who are saying Charlie Kirk was murdered for exercising his freedom of speech because he said things some didn’t like, are punishing people for exercising their freedom of speech because they said things they didn’t like.
But it gets more complicated. The executives at Disney/ABC not only heard the government statements, they heard from advertisers who voiced concerns. And two major ABC affiliate owners—Nexstar and Sinclair, announced they were dropping Jimmy Kimmel Live! from their stations before Disney acted. In suspending the program, Disney/ABC said it needed to “avoid further inflaming a tense situation.”
So, business decision or response to government pressure? You decide. But do so in the context that Disney/ABC already steamrolled over its principal news anchor, George Stephanopoulos, to settle a defamation lawsuit filed by Donald Trump. Paramount/CBS also settled a defamation lawsuit filed by Trump. First Amendment experts doubted either lawsuit would succeed at trial. But both companies had mergers pending which required the approval from an alphabet soup of Trump administration agencies, FCC, SEC, DoJ. Even if the media companies eventurally defeated Trump’s lawsuits, the administration could tie them up for years and cost them millions in legal fees. Nexstar, the affiliate station group, also has a merger pending.
In his book Free Speech: A History from Socrates to Social Media, Jacob Mchangama, declares free speech to be the “bedrock of Democracy” and traces the movement to ancient Athens. He also observes that it is the greatest threat to those who propose authoritarianism and dictatorship. The first thing a conqueror does in modern times is take possession of the local television and radio stations.
Russia has free speech guarantees in its constitution which are even more expansive then the First Amendment. When Vladimir Putin took office, there were voices of dissent in Russian media. There was even a comedy show with puppets satirizing the government. But within a few years those voices, and the Putin puppet, were gone. Lesson learned.
The whole Kimmel incident led to a massive outpouring of debate on all media. The Trump administration did not back down. But Disney/ABC announced Kimmel will return to the airwaves this evening. What changed their mind? They haven’t explained. But it may be public pressure. After Kimmel’s suspension, Disney viewers and customers began to cancel their subscriptions to Disney+ and Hulu and threaten a broader consumer boycott. According to Strength in Numbers, the Disney boycott quickly became four times as large as any boycott over the last five years. Disney’s stock dipped about 3.5 percent and continued to trade lower in subsequent days. The loss in market value amounted to some $4 billion. If Disney’s original decision was a business decision, it appears to have been an unwise one.
Nexstar and Sinclair still say they will not return Kimmel to their stations. Kimmel’s contract expires next year. Who knows what will happen after that? Paramount/CBS has already announced it is canceling its Late Night with Stephen Colbert. It claims late night television is a money loser and now, under the new ownership of David Ellison’s SkyDance Media, it is cutting its loses. But Colbert is another frequent target of the Trumpies. And Ellison is a Trump supporter.
Long gone are the days when media properties were seen by their owners not only as a business venture, but also as a public trust. The great First Amendment was meant to protect the public’s interests, not the interests of business. It was a nice idea. But even nice ideas need protecting. It’s up to us.
Update September 24
Jimmy Kimmel returned to the air last night, Disney/ABC ending its four-show suspension of the late-night host.
During Kimmel’s monologue he addressed what he said before and explained that it wasn’t his “intention to make light of the murder of a young man” in reference to Charlie Kirk. He also said that his show was taken off the air briefly, and his staff lost their jobs because Donald Trump “can’t take a joke” aimed at him. He also discussed the government pressure that resulted and defended his right to speak freely on his program. Nexstar and Sinclair, two of Disney/ABC’s largest affiliate station groups still did not carry the program. That cut his over-the-air audience reach by about 20%. Those viewers, mostly in small size cities in the northwest and south, can find the program online. In the first 12 hours seven million viewers watched Kimmel’s return on YouTube.
Ahead of Kimmel’s return Trump took to the social media app Truth Social, where he threatened to “test” ABC over its decision to reinstate Kimmel to late-night. “I can’t believe ABC Fake News gave Jimmy Kimmel his job back. The White House was told by ABC that his Show was canceled!” Trump wrote. “Something happened between then and now because his audience is GONE, and his ‘talent’ was never there.”
Kimmel also played a video of Trump stating that Kimmel was “fired,” has “no talent” and is a “wack job.”
“Well, I do tonight,” Kimmel said of Trump’s claim as the audience applauded. “Thank you. You almost have to feel sorry for him. He tried did his best to cancel me. Instead, he forced millions of people to watch the show. That backfired bigly. He might have to release the Epstein files to distract us from this now.”
The comedian generally gets the last laugh.
The full text of the monologue can be found here.
Update September 26
Both Nexstar and Sinclair have announced they are returning Kimmel to the air on their stations.
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