Free speech, suddenly
This week, Jimmy Kimmel joined Stephen Colbert in Trotsky’s dustbin of late-night TV history, temporarily, at least.
In his Monday evening monologue, Kimmel said:
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.
One might ask why the heir to Dick Cavett felt the need to opine so as a prelude to interviewing the guy from “Tulsa King.” Light entertainment isn’t what it used to be.
Whatever the reason, the fact remains that what Kimmel said is false, and he either knew it was false when he said it — which would put him in breach of Federal Communications Commission (FCC) regulations — or he hadn’t bothered checking. He spread these falsehoods about an ongoing murder investigation for purely political purposes; to exonerate his allies and impugn his opponents. ABC, or its parent company Disney, have every right to fire him for this behavior. Doing so is not against Kimmel’s rights under the First Amendment, which does not open with the words “Disney shall make no law…”
A lot of people who were, just a week ago, somewhat ambivalent, shall we say, about Charlie Kirk getting shot in the neck because he said things someone disagreed with have, now, taken to the barricades to defend free speech in the wake of Kimmel getting suspended. Such people have no sincerity, but do they have a point?
The Ring of Sauron
Kimmel’s suspension came just hours after FCC Chair Brendan Carr threatened action against Disney and ABC over Kimmel’s remarks. “We can do this the easy way or the hard way,” Carr said. “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.” It came shortly after Nexstar Media, one of the largest operators of TV stations in the United States, announced that its ABC affiliates wouldn’t run Kimmel’s show “for the foreseeable future” in protest at his “offensive and insensitive” comments.
Nexstar is currently trying to get the FCC to sign off on a $6.2 billion merger, and some believe that their decision was an attempt to curry favor. If Kimmel was suspended because of pressure from a government entity like the FCC, he could argue that his First Amendment rights had been violated.
Is this what happened? I don’t know, and I suspect that one’s answer will largely depend on which way they lean politically. Clearly, nobody has done more to undermine the argument that the FCC played no role in Kimmel’s suspension than the Chair of the FCC.
But this issue did not arise with this Chair of the FCC. Dominic Pino provides a good summary for National Review:
As historian Paul Matzko has chronicled, the FCC under Presidents Kennedy and Johnson used the Fairness Doctrine to target right-wing radio hosts in the 1960s. Under the advice of United Auto Workers President Walter Reuther, the Kennedy administration created a front organization to file Fairness Doctrine complaints with the FCC against anti-Kennedy broadcasters. Networks either changed their programming to comply with the FCC’s demands or pulled conservative shows off the air.
The Democratic National Committee fleshed out this strategy during the Johnson administration, with political operatives paid to covertly coordinate FCC complaints against right-wing broadcasters across the country. One station sued, and in the 1969 case Red Lion Broadcasting v. FCC, the Supreme Court ruled that the Fairness Doctrine was constitutional. Unknown to the justices was that the initial complainant to the FCC that led to that case was paid by the DNC. “The Supreme Court had been hoodwinked by the most successful government censorship campaign of the last half century,” Matzko wrote.
This history is more than “Whataboutery,” a phrase generally deployed by hypocrites in any case. It shows that the problems with the politicization of the FCC did not begin with Brendan Carr shooting his mouth off on a podcast but are inherent in the nature of the organization itself. It creates exactly this sort of opportunity for the granting of or withholding of favors — cronyism, in other words — which is bad both economically and morally. The FCC is like the Ring of Sauron from “The Lord of the Rings.” It grants the wearer great power, but it also corrupts them, twisting their intentions towards Sauron’s will and containing his malice. Its destruction is the only way to truly defeat him.
As Pino notes, quoting Ayn Rand, the argument “that because the spectrum space for broadcasting is scarce, it must be nationalized” and regulated by a body such as the FCC falls apart when one considers that:
“The number of broadcasting frequencies is limited; so is the number of concert halls; so is the amount of oil or wheat or diamonds; so is the acreage of land on the surface of the globe.” It does not follow that concert halls, oil, wheat, diamonds, and land should be nationalized and licensed for private use by federal bureaucrats.
Instead, we should allocate private property rights. In addition, and more fundamentally:
Technological advances have made the scarcity-based justification irrelevant. Cable television and satellite radio effectively removed the technological limitations on the number of broadcast stations, then the internet made broadcasting easy as pie.
Technological advances continue to reduce the number of “natural monopolies” which once justified so much government regulation.
“Can you imagine what liberals would do given control of the FCC,” conservatives are often told. As we’ve seen, they don’t need to imagine it, and ought to retain their skepticism of such bodies. Liberals, newly awaked in the last two days to the threat to free speech in the United States, should adopt this skepticism. The only way to protect ourselves from the politicization of the FCC is to destroy it, like the Ring of Sauron. Sadly, the federal government is dripping with more such rings than Mr. T.