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Five days after Charlie Kirk’s assassination, the FBI and Utah law enforcement informed the public that Kirk’s alleged killer is a leftist gay man in a relationship with a mentally ill man who thinks he’s an animal and a woman, and who seems to follow “furry” pedophile cartoonists. Nevertheless, on September 15, late-night host Jimmy Kimmel did a monologue implying that the killer was a MAGA activist. I don’t pretend to know Kimmel’s beliefs when he made that statement, but it was incredibly cruel and light-years away from the publicly available facts.
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I suspect that, as much as anything, it was an attention getter, as Kimmel tried to woo back his audience. Kimmel has been playing to a hard left audience for years now. Nevertheless, in the second Trump era, Kimmel still managed to lose 43% of that audience over eight months. Given how leftists responded to Kirk’s death (viciously and irrationally), he probably thought that if he, too, were vicious and irrational, they’d return home. Instead, in addition to losing his audience, Kimmel lost his job.
The same leftists who’d thrilled to Kirk’s murder were utterly appalled that Kimmel was given the boot. How dare the network sack him (well, suspend him indefinitely) for saying something cruel, inaccurate, and offensive? Hasn’t ABC heard of free speech? And the whole suspension thing wasn’t voluntary anyway, they cried, because the Trump administration had threatened to destroy it if it didn’t fire Kimmel.
Even some people on the right chimed in, everyone from Ben Shapiro, who worries that getting rid of Kimmel will give Democrats ideas when they return to power, to Sen. Ted Cruz, who framed the issue as one of government overreach into content moderation.
Well, they’re all wrong. The shrieking Democrats, Shapiro, Cruz, everyone. That’s because they’re missing basic ideas about speech, the Democrats’ nature, and the government’s powers. All of the issues they raise are intertwined, so I’ll just dive right in, debunking as I go.
(For this post, I’ll ignore entirely the fact that, starting with the Obama years, Democrats, including Kimmel, cheered on the deplatforming and firing of everyone with whom they disagreed, whether President Trump, rodeo clowns, news and opinion purveyors, actors and actresses, or people working at pizza parlors. I just want to focus on what constitutes free speech for purposes of Kimmel’s monologue.)
Technically, the First Amendment applies only to the government. (The First Amendment controlled the federal government; the Fourteenth Amendment extended the Constitution’s core rights to the states.) This means that the government may not use its police powers to limit people’s speech, especially their political speech.
However, even with the Constitution, there’s actually no such thing as absolutely free speech. There have always been limitations on it: You cannot use speech to incite imminent violence, and speech can be criminalized if it’s an integral part of an actual crime (for example, planning a criminal conspiracy). Thus, the government can police speech.
Outside of criminalized speech, in the private realm, you cannot defame people or organizations (i.e., spread negative falsehoods about them). If you do, whether accidentally or intentionally, you’d better apologize; otherwise, you’ll find yourself being sued for big bucks.
In both the private and public realms, fraudulent speech is actionable. For some frauds, the government will come after you; for others, a private citizen can sue you. But regardless, fraud is a type of speech that carries serious consequences.
Finally, the Civil Rights Act imposed some speech limitations on businesses. Discrimination via speech is a no-no and is actionable.
Mostly, though, employers do retain rights over their employees’ speech. For example, if I’m a store clerk, my boss can fire me if I tell an annoying customer that she’s a fat poopy face and makes all of our beautiful clothes look like rags once they’re draped on her ugly body. That’s my opinion, so it’s not strictly defamatory, but the store does not have to allow me “free speech” rights. Once I say that, I’m an unemployed store clerk.
In other words, ABC was totally within its rights to fire a man who was costing them money and offending people when his job, technically speaking, was to entertain people. Thus, just as I suspect Kimmel was making a desperate bid for his audience to return home, I think that ABC executives were pleased when the money-losing Kimmel gave them an excuse to give him his walking papers. I don’t have proof of any of that, of course. It’s my opinion, not fact.
But what about the government? What about when FCC Chair Brendan Carr suggested that the FCC would be looking into what Kimmel said? Wasn’t that a threat that proves how bad the Trumpistas really are? No. In fact, that was okay, too. Long-standing FCC rules stipulate that the government controls broadcasting licenses, granting corporations such as ABC access to the public airwaves, but only subject to certain conditions.
One of those conditions is that you can’t broadcast false information about a crime or catastrophe if it will cause public harm. Given the overheated temperature at which America is operating now, if Kimmel knowingly misstated information about Kirk’s murder in order to foment unruliness and hatred, ABC can lose its license. Clearly, the company didn’t want to take that chance, especially with someone losing money for ABC.
But what about the concerns Shapiro and Cruz expressed? Regarding Shapiro, I don’t quite understand why, in the tit-for-tat world of people facing consequences for their words, he thinks that conservatives are guilty of “hitting back first,” thereby risking that leftists, in the future, will claim they’re justified to do the same. As noted, leftists have been doing this kind of cancellation with manic fury for years. I don’t think they need Kimmel’s firing for inspiration.
As for Cruz, he’s right that, in a perfect world, the government wouldn’t be policing TV shows. However, we don’t live in a perfect world. We live in a world in which FCC broadcasting licenses clearly give the government power to police certain speech that license holders make over the public airwaves. In exchange for the benefit of having access to those airwaves, the license holders bear the burden of being honest about the information they give the public — or at least, making all reasonable efforts to be honest.
Given that the government has the power, there’s no reason not to use the power. And the fact that Democrats might be mean later is not a reason to restrain ourselves now. After all, Democrats have already demonstrated that they will use both fair means and foul to their utmost in order to destroy conservatives.
If we keep being super pure and playing by antiquated rules of political conduct, we will ultimately be destroyed. The little lady wittering on about manners while sitting daintily behind her teapot is no match for the brute who smashes his way into the room, destroying everything she possesses before turning on her.
Trump figured that out during his four years in the “we will throw you into prison and bankrupt you” wilderness. While I certainly do not advocate using foul means to put the Democrats back into the box of civil behavior, we should be using all fair means available, including those in the FCC’s rules of conduct.
And that’s why everyone is wrong except for me!