Free speech and late-night TV

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NICK EICHER, HOST: Late-night host Jimmy Kimmel made comments less than two weeks ago that may go down as among the most expensive pieces of free-speech to air on network TV.

KIMMEL: 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.

The comments drew fire not only from conservative activists, but from Washington. FCC Chairman Brendan Carr called it “truly sick conduct” and warned ABC it needed to rein in Kimmel or else. The audio from the Benny Johnson podcast.

CARR: But frankly, when you see stuff like this, I mean, look, we can do this the easy way, or the hard way. These companies can find ways to change conduct, to take action, frankly, on Kimmel or, you know, there's going to be additional work for the FCC ahead.

MYRNA BROWN, HOST: The suspension began after several large network affiliates dropped Kimmel’s show. And with the FCC chairman warning that the licenses of ABC affiliates could be on the line the pressure mounted.

EICHER: Supporters of Kimmel called it government censorship … critics pointed to a 1927 law that requires broadcast stations to operate “in the public interest.”

Disney—which owns ABC—announced yesterday that after some “meaningful conversations” with the host … Kimmel will be back starting tonight.

BROWN: Joining us now to talk about it is Michael Farris, general counsel for the National Religious Broadcasters. Good morning Michael.

MICHAEL FARRIS: It’s great to be with you. Thank you so much.

BROWN: Thank you for being here. You know, this story is filled with larger-than-life personalities, and all the media attention has certainly blown it up. Would you help us think through what’s most important.

FARRIS: The starting point for thinking through these issues is the First Amendment. The First Amendment only binds the government. The government cannot interfere with freedom of speech. Now it's also important to know that speech concerning violence is not necessarily protected, but in general terms, ABC or any other employer can decide to hire somebody or fire somebody if they don't like what they're saying.

Now we have the situation where President Trump and the chairman of the FCC, Brendan Carr, both made comments that were efforts to urge ABC to take action against Jimmy Kimmel. And you know, at first blush, this seems to present a problem, because both of them are, in fact, government agents. And should the government be allowed to encourage a private employer to silence somebody because the people operating the government don't like the speech involved?

Well, the Supreme Court took up a case in the last cycle about this very issue. It arose from the Biden administration's meetings it had with Facebook, Twitter, other social media organizations where the Biden administration regularly said, silence this voice. Let this voice be heard. Silence this message. They were clearly pressuring the social media agencies to stop people from speaking.

Now I filed an amicus brief for National Religious Broadcasters, taking the position that it is improper for the government to ever, when we're talking about protected speech, to ever say “silence this voice.” Now the Supreme Court didn't agree with me. They took the position that the Biden White House had, in a few instances, violated the First Amendment, but in the majority of instances, they were not coercing the people to take action. They were simply pressuring them, perhaps, but not coercing them.

And so what the president did and what Brendan Carr did seems to me to be in line with what the Supreme Court approved. I take a more rigid stand than that, the government shouldn't do this at all, but the Supreme Court let them get away with it. And the Biden administration, I don't see any material difference in this circumstance. What was attempted, obviously, was not effective, because ABC hired him back.

BROWN: Were you surprised by the decision to reinstate Jimmy Kimmel?

FARRIS: I'm not terribly surprised. I mean, ABC still is a left-leaning organization, and they were looking bad in certain circles. So I can, I can see why they did it. But if I was Jimmy Kimmel, I'd pay attention to what happened here and realize that he needs to get higher ratings by appealing to a broader section of the audience. I mean, they had a legitimate business reason for getting rid of the guy because he was tanking, costing them a lot of money. And I think that, you know, if he has any semblance of common sense, he will take a more balanced view in the way he approaches things.

BROWN: The Communication Acts of 1927 and 1934 introduced language that mandates broadcast stations must “broadcast in the public interest.” What does that mean, and how does it apply to this situation with Jimmy Kimmel?

FARRIS: Well it certainly means that no one can glorify violence against your political opponents using a broadcast license. Now, what it shouldn't mean is merely disagreeing with the people who are in charge of the government today. And that should be the rule when my friends are in office, and it should be the rule when my opponents are in office, we should stand up for the freedom of speech for everybody.

BROWN: Who should make sure networks are doing that? Broadcasting in the public interest?

FARRIS: Well, it's the FCC job at the end of the day to make sure that that's happened. And you know, they have to have a “broadcast in the public interest” meaning to that phrase that's consistent with the First Amendment. And so if they're imbalanced, that by itself, is not, to me, grounds for silencing somebody, because if it is, then Christian radio and television can be in real trouble, because we don't have the local atheist come in and offer his viewpoint on this or that. Or the local Buddhist or somebody else.

Christian radio and television takes a very strong viewpoint, and the public interest does not require us to provide equal and balanced treatment on everything we talk about that simply is not something that should be tolerated, and the government's ability to regulate you should be along the lines of protected speech.

Occasional mistakes? I mean, what Jimmy Kimmel said about the political views of the shooter in Utah is just flatly wrong, and he knew it was wrong. He was trying to make a political point. And you know, that's something that should raise some eyebrows, but I would think that it's constitutionally questionable if that was the only thing, to use that as a grounds for action against a licensee.

BROWN: With Disney reinstating Jimmy Kimmel…how might this whole situation affect public discourse in our country?

FARRIS: Well, I think that the fact that he's been reinstated does emphasize the fact that private employers make their own decisions about this issue. Disney and ABC are big boys, and if the government was pressuring them, they're not going to give in, unless they want to. And so I think that we've driven home the independence of private actors, and that's that's okay.

I think we also hope that we drive home the point, not as in the governmental sphere, but in the business sphere. I hope that ABC and Disney get the point that you shouldn't alienate half of America every time you talk. And I hope Jimmy Kimmel learns that lesson and returns more to the kind of late night entertainment that Johnny Carson gave us and Jay Leno gave us that, you know, they touched on political things once in a while, but it wasn't a steady diet of one side that's just not good business.

BROWN: Michael Farris is general counsel for the National Religious Broadcasters. Thanks for joining us.

FARRIS: Thank you.

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