Congratulations, Democrats. You’re now living in the world you created.
M ore than a dozen years ago, the Obama administration joined with Turkey’s despotic strongman, Recep Tayyip Erdoğan, and other sharia-supremacist regimes to craft United Nations Human Rights Council Resolution 16/18. The provision bound the concurring governments to enact laws that would prohibit speech or expression that could incite mere hostility to religion. And as should go without saying when it came to the Obama administration, there was only one religion under consideration for this special dispensation — Islam.
Many of us pointed out that an American codification of Resolution 16/18 would be unconstitutional. This was so patently true that Secretary of State Hillary Clinton, playing point on the speech-suppression effort and planning a 2016 presidential run, had to backpedal. Finally, she vowed, law or no law, that the Obama administration would “use some old-fashioned techniques of peer pressure and shaming, so that people don’t feel that they have the support to do what we abhor.”
Yup. If such annoyances as the First Amendment directly obstructed (by legislation and regulation) accomplishment of the left’s Islamist-friendly wish list directly, then they would achieve it indirectly, by extortion and intimidation. It would be government by extralegal pressure tactics and signals to the radical mob — as when Obama bent bank executives to his will with the blunt warning at a White House meeting: “My administration is the only thing between you and the pitchforks.” It was the administration that moved Alinskyite strongarm “direct action” tactics from the street into the administrative bureaucracy.
Democrats were so haughty that they bragged about it when they were doing it — which is easy when the press is your courtier rather than a “fourth estate.” But Democrats don’t like it much now, as we saw with the eruption of protest Wednesday night because Disney and ABC, under pressure from the Trump administration and thus from their affiliates, suspended Jimmy Kimmel’s late-night TV show.
Kimmel is one of the progressive anti-Trump agonistes who are packaged as a comedians. The laughs are on them, though. Their ratings have cratered (that’s probably more a matter of our society’s abandonment of broadcast television than their abandonment of humor . . . probably). Plus, their Trump obsession is a net-plus for Trump.
As a tribal warrior, Kimmel thought it incumbent on him to try to spread the left’s objectively harebrained storyline that Charlie Kirk’s assassin was one of the “MAGA gang.” On a roll, he further accused MAGA and Trump officials of lying to conceal this supposed association (in reality, the accused killer of a MAGA icon turns out to be, duh, an anti-MAGA radical) and of trying “to score political points from it.”
These were imbecilic things for Kimmel to say. And saying it now, while feelings are still so raw, was deeply insensitive. But from what I gather (as a non-consumer), this fare was par for the course.
Kimmel’s show is not entertaining, not much of a revenue generator, and forfeits more than half of a diminishing pool of potential viewers (the pro-Trumpers plus the legions of Americans who can’t abide the ceaseless politicization of programming). But for present purposes, the point is not to ask why he still had a show. The point is free speech.
No matter how offensive Kimmel’s remarks were as a matter of taste, they were not remotely offensive as a matter of law. Even if we assume that Kimmel didn’t believe a word he said (and I have no idea whether he is cynical or just dumb), his remarks were protected by the First Amendment protected. He gave an opinion, which we’re all entitled to do, no matter how ill-conceived. He didn’t incite violence. He didn’t say anything actionably defamatory — just obnoxiously stupid.
If all that happened here was that the public got riled, which got the distributors of Disney’s programming riled, which, in turn, riled Disney into suspending or firing Kimmel, that would be too-bad-so-sad for Kimmel. In the popular entertainment business, those who are not entertaining and become unpopular have no reasonable expectation of job security. The First Amendment is not a shield against public scorn and its natural consequences.
That said, the First Amendment is a shield against government suppression of speech.
Our framework for Wednesday’s developments is the constitutionally illiterate admonitions by the attorney general that the Justice Department will investigate and prosecute “hate speech” — apparently, speech that her boss and his political base find upsetting. By Pam Bondi’s lights, “hate speech” is not protected free speech. (To repeat what I explained yesterday — and I’m far from a lonely voice on this — there is no “hate speech” exception to First Amendment liberty.)
More specifically, there is Brendan Carr and the Federal Communications Commission.
The FCC is the Sword of Damocles over the heads of broadcasters. It can threaten to suspend or cancel their licenses. Moreover, for an industry rocked by technology and whose participants, to survive, are forced into corporate consolidations and restructurings, the FCC’s levers of intimidation include the legal requirement that it approve mergers, acquisitions, and other business overhauls.
Carr was appointed an FCC commissioner during the first Trump administration, and he was installed as FCC chairman at the start of the president’s current term. As has become customary for top Trump officials, Carr makes the rounds on cable opinion shows and podcasts popular among the president’s political base. On Wednesday, in comments on Benny Johnson’s podcast, Carr admonished that the FCC “was going to have remedies that we can look at” with respect to Kimmel’s statements because, in government regulator’s view, they were part of “a concerted effort to lie to the American people.” He added ominously, “We can do this the easy way or the hard way,” and that “these companies can find ways to change conduct and take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.”
The companies to which Carr was referring are television stations whose licenses are controlled by the FCC. He suggested that they “push back” and decline to carry offensive programming. Subsequently, Nexstar, which owns a number of affiliates across the country that carry Disney/ABC programming, announced that it would not broadcast Kimmel’s program for the foreseeable future.
Not coincidentally, as the Wall Street Journal and New York Times have reported, Nexstar is trying to acquire one of its rivals, Tegna, for $6.2 billion. The acquisition requires FCC approval.
The next shoe to drop was Sinclair, which operates 30 ABC stations. It announced that it, too, would stop airing Kimmel’s show. This suspension would persist, the company said, until Disney/ABC demonstrated “the network’s commitment to professionalism and accountability.”
Soon came the announcement: Disney/ABC’s chief executive office Bob Iger and Dana Walden, the co-chairman of Disney Entertainment, decided to suspend Kimmel’s program indefinitely.
It’s true that these private companies had every right to suppress Kimmel’s noxious, hyper-partisan commentary. The ban against restrictions on the freedom of speech applies only to government action. But that’s not the end of the matter. Government is not permitted to achieve by coercion of private third parties what it is prohibited to do by direct action; in such arrangements, those private parties become agents of the government; their actions are the government’s actions.
At least, that’s what small-l liberals and Trump supporters argued when it was Biden administration officials and the FBI using their intimidating status as Big Tech’s regulators to extort social media platforms to suppress political speech displeasing to progressive Democrats — the Hunter Biden laptop reporting, commentary about the unwisdom of Covid restrictions and the government’s exaggerations about the efficacy of Covid vaccines. And these protests based on free-speech principles were right. As Ed Whelan points out, it’s not true that the Supreme Court gave a green light to government suppression; instead, in Murthy v. Missouri (2024), the Court held that the plaintiffs lacked standing — there was no ruling on the merits. And the case would have been stronger if Facebook’s Mark Zuckerberg hadn’t waited until after it was decided to assert that the Biden administration had pressured the platform to censor political speech.
I’d like to say I don’t understand why Jimmy Kimmel lasted as long as he did — and ditto for Stephen Colbert. But I get it: The broadcast networks are run by progressives and scared of the lefty agitators. Even with the disappearing audience and increasing red ink, hanging in there was worth it for a time to demonstrate their tribal bona fides. If they were now feeling pressure from their affiliates and the public to change, that would be healthy — better for all concerned, including their stockholders.
In this instance, to the contrary, they were feeling pressure from the Trump administration. That is why they acted. And that’s wrong, no matter what a nauseating loser late-night lefty chatter may be.
Still, it’s impossible to take the indignation of Democrats and progressive commentators seriously. I wrote repeatedly about the Obama administration’s effort to formally enact restrictions on speech, and then to openly call for extortionate suppression when Clinton and other officials couldn’t get the codification they were hoping for. (See, e.g., here, here, here, and here.) We complained long and loud over the Biden administration’s bludgeoning of Twitter and Facebook to suppress political dissent and public-interest journalism. Progressive Democrats would not join us in protest. Government by extortion is fine by them when they are the ones running the government, and they would no more buck Obama or Biden than Trump’s lackeys will buck him.
So, congratulations, Democrats. You’re now living in the world you created. I’d love to be proved wrong, but I also know that the next time you’re at the helm, you’ll be doing exactly the things you are now ballistic over — and citing the bane of your existence as your model.