I was asked by a leader of a current events discussion group to comment on some present free speech issues. I briefly commented on several.
1 . The first is the issue of self-censorship by media and other entities because of a concern about retributive governmental actions. Jimmy Kimmel is a prime example. Following the assassination of Charlie Kirk, Kimmel made comments on his late-night show, which were not disrespectful of TurningPointUSA leader, but included some misinformation regarding the political affiliation of the killer. Brendan Carr, the Trump-appointed Chair of the Federal Communications Commission (FCC), responded by saying: “We can do this the easy way or the hard way. These companies [Kimmel’s employers] can find ways to change conduct and take action, frankly, on Kimmel, or there’s going to be additional work for the FCC ahead.”
Kimmel was promptly suspended by ABC, a subsidiary of Disney. It was certainly reasonable for Disney to think it was being threatened by the Chair of the FCC. Over-the-air networks like ABC require licenses from the FCC. Moreover, two companies owning affiliates that air ABC programs were negotiating a merger that needed to be approved by the FCC. They could see the FCC Chair’s statement as a threat to that approval.
Though seemingly unrelated to free speech, these (not so) veiled threats have a direct impact on free speech. Sometimes even without a threat free speech is affected because of potential government action. We saw this dynamic in action with the $16 million settlement by Paramount Global (owner of CBS) of the Trump lawsuits against CBS. At the time of the settlement with Trump, Paramount had an $8 billion merger on the table that required government approval. What does this have to do with free speech, one might ask. Answer: Media companies (no company) should not be required to cave to the petulant posturing of a president in order to secure government approval for their business. And yet, Paramount Global felt, no doubt, that it had no choice but to cave to the political caprices of the president.
Perhaps there has always been a concern that free speech would result in government retribution. But it is more concerning now. First, the open vindictiveness of president Trump has changed things. In addition, the playing field has changed dramatically because the Supreme Court is consciously allowing the president more power that increases the possibility and feasibility of presidential retribution. Here’s how: Agencies like the FCC or the Federal Trade Commission or the Securities and Exchange Commission were meant to be independent of the president. Ninety years ago, the Supreme Court held that commissioners on such agencies could not be removed at the whim of the president, but only “for cause.” The Supreme Court has not officially overruled that precedent, but it effectively has done so. The Supreme Court has now allowed Trump to “temporarily” remove commissioners while litigation goes on about whether the removals have been lawful. It is expected that the 1930s precedent will be formally overruled this year. In other words, the previously independent agencies will no longer be independent but must answer directly to the president. Thus, companies who need agency approval for something will naturally be concerned that they will be punished for actions that displease Trump. This is affecting free speech in ways it was not before.
An aside: Might conservatives have a point in the Jimmy Kimmel affair? Four over-the-air late- night hosts use the public airwaves: Stephen Colbert, Jimmy Fallon, Seth Myers, and Jimmy Kimmel. All can be characterized as anti-Trump. What if all were the comedy equivalent of Fox News? How would liberals react?
2. The second is another, non-Kimmel free-speech issue occurring in the aftermath of Charlie Kirk’s assassination.
A recent newspaper article states that over 145 people have been fired or disciplined by their employers for comments about Charlie Kirk. These data are from public records, but there may be many more that haven’t been reported. Often the comments have been innocuous. For example, an employee of a public university commented on her private Facebook page, “If you think Charlie Kirk was a wonderful person, we can’t be friends.” She also said that she believed in the Resurrection and was praying for his soul. She was fired for these comments.
All the firings of employees for their comments while not on the job raise free speech issues, but not all raise First Amendment issues. The First Amendment applies only when the government does something that limits speech. Thus, it comes into play when a public employer disciplines public employees for their speech. However, there are few legal restraints on private employers who often can fire for any reason.
But something new is also operating in this arena. Online armies are scanning for social media comments to get people fired. Those who have made comments critical of Kirk are often doxed and flooded with ugly and threatening messages scaring them and others into silence. The online scrollers want to punish and prevent speech they don’t like.
While the private firings and the doxxing may not raise First Amendment concerns, they do raise important free speech concerns. We need more discussion of how free workers should be to express their views while not on the job, and, further, how to prevent some of the terrible excesses of social media and the internet.
3. The new Pentagon leadership says it will require credentialed journalists at the military headquarters to sign a pledge to refrain from reporting information that has not been authorized for release — including unclassified information. Reporters, in effect, can publish only press releases. Journalists who don’t abide by the policy risk losing credentials that provide access to the Pentagon.
I asked a friend who had been a media attorney whether he knew of similar past directives. He says this appears to be unprecedented.
He did point out that this administration (and others) have cut off reporters who published stuff the president didn’t like. (Witness the AP and the “Gulf of America” controversy). But these restrictions on free speech were relatively mild. They only limited the access of individual reporters. They were not a blanket restriction on what can be reported.
The Hegseth directive for the first time tries to make those covering the Pentagon into something like state media. You may publish only what the government authorizes. We have not had this Pravda-like restriction before. If it stands up in court, it would be a titanic and dangerous change in how the government, the press, and the people interact with each other.
