Jimmy Kimmel, the FCC & Free Speech: Let's Talk About What’s Really at Stake

FMC Fast Chat takes you inside the news so you can be in the know in 30 minutes. Hosted by Fair Media Council CEO and Executive Director Jaci Clement, Fast Chat features notables in news, media, and business.

I'm Jaci Clement, and joining me today is Clay Calvert, nonresident senior fellow at the American Enterprise Institute. And professor emeritus at the University of Florida. Clay is one of the nation's foremost First Amendment scholars, and together we're breaking down the stories making news today, from Jimmy Kimmel's suspension to the FCC's overreach, so you can understand what's really at stake. Hey everybody, welcome back to another episode of FMC Fast Chat. I'm Jaci, and I'm here today with our First Amendment guy, Clay Calvert. Ann Clay, always good to see you. Thank you for taking the time to be with us today.

Nice to be with you. Thank you for having me.

I want to kick off, um, with things that have been in the news. Pam Bondi gave an interview where she was very emphatic about prosecuting hate speech. What's your reaction to that interview?

Well, I think it's problematic because under the First Amendment to the United States Constitution, hate speech generally is protected. We protect a lot of offensive, disagreeable, and hateful speech in the United States. Uh, that's unlike some other countries which are more prone to censor what we would call hate speech. Uh, one of the problems with trying to, to censor hate speech is how would you define it? What's a definition that's not so broad that it gives the government unbridled authority to, you know, to squelch or stifle any speech that it disagrees with? So the big principle is there is no carve-out from the First Amendment called hate speech in the United States. There are carve-outs from First Amendment protection for things like child pornography, obscenity, fighting words, incitement to violence, and true threats. But again, hate speech is generally protected. That's the big picture. I, I would add that hate speech is only not protected when it's used in the context of an unprotected category like fighting words. So fighting words are not protected by the First Amendment. There's no laundry list of these are the fighting words. It's basically how a word is used in a personal face-to-face encounter. So when we're thinking about fighting words, what we're talking about are personally abusive epithets used in a one-on-one face-to-face encounter that are likely to make the target of that speech swing back and hit the speaker. That's why we call them fighting words, personally abusive epithets. So the classic example of that is a white person using the N-word directed at a Black person in a heated face-to-face encounter. Numerous courts have said that would be the use of a fighting word. So that's an instance where what we would consider hate speech, the N-word, would not be protected. But it's only not protected in that case because it's used in the context of a fighting word scenario, one-on-one, face-to-face, where the target of the speech is likely to swing back and, and hit the speaker. But the N-word generally would be protected if it appears in a movie, in a book, uh, you know, something like that. So I think, uh, Pam Bondi, uh, when she said she was going to target people for engaging in hate speech, uh, was off, was a little bit off on that.

Okay. Fair enough. Um, you know, she's taken a lot of flack from both sides of the aisle. for saying it. Um, so I think in one regard she's actually found a way to unite people. So that may be the good part that came out of all this.

Yes.

Although you would hope, you know, you would hope the Attorney General would have an understanding of these issues though.

Absolutely. No, and, and these are pretty basic when it comes to the First Amendment. So she did try to walk back or at least qualify. By saying what she was talking about was hate speech that crosses the line into threats that incite people to commit violence. Uh, what she did there was, unfortunately, she really mangled 2 unprotected categories or, or muddled them and mixed them together. So there is an unprotected category of speech that we call true threats of violence. Uh, a true threat is a statement that puts a person In reasonable fear of imminent bodily harm or death. I say something to you and it puts you in fear of imminent bodily harm or death. That's a true threat. Sometimes there's a difference between how do we distinguish between political hyperbole. If somebody says, I could kill you for that, but they don't mean it like they're really going to kill somebody for that versus what's a— and we call it a true threat because it has to be an actual threat, right? As contrasted with political hyperbole. So political hyperbole would be protected, but a true threat is not. And then the other thing that she kind of melded in there is when she said a threat that would incite other people to violence. There's a separate category of unprotected expression called incitement to violence. That's a little bit different than a threat. A threat is I say something to you that puts you in fear of imminent bodily harm or death. Incitement is I say something to you to try to get you to commit harm against somebody else. In other words, I am inciting you, right? And that speech, it's a very narrow exception. It has to be directed. My speech has to be directed to inciting or producing imminent, meaning proximate in time, lawless action, and also likely to lead to it. So we do have a First Amendment carve-out for incitement to violence. But all of those elements have to be met. My speech has to be directed to inciting it, which means intended. It, the, the gap between my speech and the, the unlawful violence, uh, has to be imminent, meaning it's very short. And it also has to be substantially likely that the violence would actually occur. So really what she, what, uh, Attorney General Bondi did was she kind of melded true threats with incitement. Again, big, big 3 topics we've mentioned so far. Hate speech generally is protected by the First Amendment. True threats and incitement are not, but those have very precise definitions.

Okay. You made a, you made a very clear point when you were talking about threats that it needed to be face-to-face. Does that include online?

Oh, sure. So, so that's for fighting words, right? So that's for the fighting words exception. So. Fighting words, it's very difficult to have a fighting words online scenario. Uh, fighting words really have to be in, in the case, which is called Chaplinsky, which gave rise to this, an old case, really was a face-to-face in-person context. Uh, so fighting words, if somebody distributed a flyer or a leaflet to somebody or posted something, we really typically don't have a fighting words scenario. Again, the fighting words are those personally abusive epithets that are really inherently likely to make the target swing back and hit the speaker. If you're not face to face, there's really going to be no fight that can occur. That's one way, I guess, to think about it. A true threat, though, if I used, as a white person talking to a Black person, the N-word to put that person in fear, that would be another instance where indeed we could probably say that's a true threat of violence using that word where hate speech would not be protected. But again, big picture, hate speech generally is protected unless it falls into an unprotected category, such as fighting words, such as true threats or incitement to violence.

Okay. So how does social media play into this? I'm kind of segueing a little bit, but as you're talking, I'm thinking about how there are groups out there that are using the internet to target people for saying things they don't want to be said.

That, that's right. And so, so we saw this in the, in the aftermath of Charlie Kirk's death where people were found to have said things online that were hateful or offensive or celebrating the death of Charlie Kirk. And then you got other people then forwarding those names, right? To employers.

Yeah.

To try to get those people Fired or terminated from their job. Uh, that we would sometimes call that trolling, right? They're trolling somebody.

Mm-hmm.

Uh, in those types of situations. Ultimately what that is designed to do is really to shut that person down. Don't say that again because we now know you said that. And so now we're gonna tell your employer and hopefully your employer will get you, uh, fired or terminate your job or suspend you. In other words, it's another mechanism of silencing speech that people don't like. I think the big picture, we haven't talked about this yet, but the big picture is how do we really get ourselves out of this mess, right? How do we get to the point where instead of trying to stifle other people's views, we can finally have rational debate, discussion, and discourse again in this country? We are so politically polarized. That our immediate response or reaction is to shut the other person down, right? To silence them in some way. How do we, how do we ultimately get past that? And that's going to take a lot of time and a lot of effort, uh, and people to understand that we live in a pluralistic society, right? And by that, I mean pluralism where people have different viewpoints. Uh, in a democratic society, uh, you have to tolerate dissent. You have to tolerate dissenting viewpoints and different viewpoints. And sometimes you even maybe have to compromise. Uh, and that's something we've seemed to have lost touch with.

Well, I don't know if it's getting any clearer now that we seem to be melding religion more and more into politics. And there's no, it doesn't appear to be a separation of church and state like we used to have. Yeah.

Well, well, you know, that's another issue beyond the speech and that's kind of beyond my purview. Uh, But, but indeed, uh, it, it, it can be problematic too when, when you do start to meld that under the First Amendment. We're only talking about speech here, but indeed we've got the 2 religion clauses, right? The Establishment Clause and free exercise. And the Establishment Clause is the one that we, we don't have any state-sponsored church really is what it amounts to. Free exercise being your ability to freely exercise your religious beliefs. So sometimes indeed they do meld, uh, the right to free speech. And the right to speak freely about religious issues or to pray, for instance. And we're seeing a lot of those cases come up.

Walking back now, strictly talking about free speech. Okay. Jimmy Kimmel, um, lost his show, got his show back starting tonight. Um, what is your take on that whole scenario? Sure.

Well, I find it highly problematic that the FCC And in particular, Brendan Carr, who's the chairman of the FCC, can leverage the public interest mandate to try to silence speech by a comedian. Admittedly, it was not funny what he said. It was offensive and disagreeable. But what we see is the government, the FCC, using this public interest mandate to try to silence, I think, and this is just one of many examples or several examples. To try to silence dissenting viewpoints or viewpoints that President Trump doesn't like. As Brendan Carr said, he said, we can do this the easy way or we can do this the hard way. That's what he said. And what he meant by that was ABC or the stations that carry Kimmel, you can pull him off the air. That's the easy way. The hard way would be we will open up an investigation. He didn't even have to say that. We will open up an investigation into this matter. We will say that Kimmel distorted facts. There's a, there's something called a news distortion policy that the FCC enforces, but it really has to be a deliberate manufactured stage type of event, not matters of editorial control and discretion. Here you have a comedian making a joke. It died. The joke didn't work. It wasn't funny. Uh, so It's problematic when the chairman of the FCC can make a remark like that. We can do it the easy way or the hard way. And the hard way is, as, as the stations, uh, you had Nexstar and Sinclair, they pulled Kimmel, right? They recognized we don't want to go through this. Why? Because ultimately the FCC could revoke their licenses. You know, they could revoke the licenses of the stations. And that's kind of where the public interest comes in. Uh, there's a statute that says that free over-the-air broadcasters have to serve the public interest, convenience, and necessity. And if the FCC determines that those stations don't serve the public interest, convenience, and necessity, ultimately, it's very rare, but ultimately they could lose their licenses. So rather than risk that, what happens is what we call self-censorship or a chilling effect on speech. They say, Jimmy Kimmel, we're going to pull you off the air. That's what ABC did. Now, There was a lot of backlash. Senator Ted Cruz spoke out, a lot of public backlash. People were very upset about this. I would say this, that typically we think of the remedy in broadcasting for speech that we don't like are economic marketplace forces. If Kimmel says things that are not popular and nobody watches him anymore, then his audience will dwindle. And in turn, then nobody's going to advertise on Jimmy Kimmel's show because there's not enough people, not enough eyeballs, right? Not enough to reach. And so ultimately then, because nobody watches Kimmel, Kimmel goes off the air. That's how we typically think of the remedy. And that's a marketplace remedy. It's not the government coming in and saying, we're going to use the public interest mandate to get you off the air and something like that. It's no, let economic marketplace forces dictate that if nobody watches Jimmy Kimmel, ABC will pull him. So kudos for ABC for putting him back on the air. Uh, let's see how it goes from here.

You know, the whole market forces scenario really plays out as the public determining what they want and what they don't want.

Yes. And so, and so that's really how we think of the concept of the public interest. What is the public interest? Is the public interest whatever the public is interested in, whatever the public wants, right? Or is the public interest some kind of public good? What the, what the government thinks the public needs regardless of whether the public wants it or not. And so there's a danger in the marketplace of ideas whenever the government intervenes and says the public doesn't need to hear this speech. We're gonna can that speech, or the public needs to hear this speech and we're gonna force broadcasters to air that. And so that's highly problematic. So the public interest, it can be, it sounds amorphous and it can be because whichever, whoever controls the FCC, and right now we've got a Republican president. And so the Republicans, it would be 3 to 2 under a normal FCC, right? We typically have that. We don't even have 5 commissioners right now. Uh, you know, typically then we would say, let marketplace forces dictate this. Don't let the government control this. Does that make sense on that? I think, you know, it's just, it's, it's really problematic when the government intervenes in the marketplace of ideas to tell us what speech is good, what is in the public interest, and what is not.

All right. All right. Let me ask you this, because as you were going through the scenario with Kimmel, Uh, you mentioned news distortion. Now he's a comedian and he works outta the entertainment division. Does news distortion even come into play here?

That's a great question, and I think it shows the problem with having a news distortion rule. Basically, there's a rule against hoaxes, uh, but hoaxes are different, right? Those are, the hoax is typically 2 disc jockeys in the, in the morning on April Fool's Day. Saying something that's clearly false, a hoax, but a few people buy into it, and that can obviously be problematic. Yes, what you're pointing out is so true. We have a comedian, late night entertainment, and, you know, we think about Saturday Night Live, uh, you know, again, entertainment, making fun of politicians. Uh, this is part of the give and take, the rough and tumble of politics and, and media and speech in the United States. Uh, and I think a lot of people finally recognized here that this is troublesome when the government can try to threaten, uh, doesn't even have to threaten, says we can do it the easy way or the hard way, right? That's enough now to send a signal because broadcasters, some at least, uh, you know, tend to be scared of Trump right now trying to silence dissent. And that's all that Brendan Carr has to say. And it proved successful for a while. And then ABC said, no, we're going to put him back on the air. I think the public backlash and backlash from some conservatives now was too much.

I will say Brendan Carr seems to be a very busy FCC commissioner compared to prior ones. You know, the whole idea of how he went after PBS, And, um, you know, public media in general. Part of me wonders, you know, if I look at today's media landscape, the broadcasting portion is a smaller and smaller sliver of the overall media landscape. I'm not sure if people understand that when Brendan Carr goes after broadcasters that actually have that public mandate and the rest of the, you know, Uh, media landscape does not. For him to be diminishing it, how is that a win?

Yeah, I agree with you. I don't think it is. It, I don't think it really is a win. And that's exactly right. It's really free over-the-air broadcasters that are subject to that public interest, you know, convenience and necessity mandate. And so we, we typically think ABC, NBC, CBS, PBS, anybody free over the air, right? And free over-the-air radio. By that I mean AM and FM. Not talking, you know, satellite radio, those types of things. So, so cable, right? They're not subject to those same rules. So, so it's such a small sliver. And yet we're seeing these attacks on it, these attacks by the FCC and Brendan Carr in ways that we really have not seen, not seen before. And, and as you said, he, he definitely is very busy. He has, at least in my view, a hand-in-glove relationship with President Trump. And I think if we— your other point is really well taken. We've got to look at the broader marketplace of ideas, right? So where do we get our ideas today? A lot are on the internet. Some are cable, some are streaming over the top, right? There are many, many sources of it. And so you're exactly right. He's poking at this very finite little area free over-the-air broadcasting and, and, and really for what benefit? I think it's probably for President Trump's benefit.

Okay. Uh, and I, I think one thing we should also point out is it's the local affiliates that have the FCC licenses. It's not the networks themselves. So when you go after a network for something that occurs from a network program, The only way to punish them is by going after the affiliates that had nothing to do with it.

That's exactly right. And, you know, we've heard President Trump make this mistake time and time again. You know, he'll get mad at CBS for the Kamala Harris interview and say that Carr should revoke CBS's license, right? Uh, you know, CBS does have what we call O&Os, right? Owned and operated stations.

Mm-hmm.

But there are not many of them. Most of those stations are owned by somebody else, some other group. And so with the ABC situation, in this case, we had Nexstar, which owns some stations, right? And Sinclair. And together they owned slightly more, I think, than 60 stations. And so they're the ones that ultimately would have their licenses revoked. The only ABC stations would be the ones that ABC itself owns. But you're absolutely correct. We think about gray media, other types of Uh, of enterprises that own television stations across the country. They're the ones that hold those licenses from the FCC, and they're the ones that could have those licenses ultimately revoked. So, uh, President Trump has been off base when he says we should revoke ABC's license, right? Uh, it's not ABC's license, it's whoever owns those stations. They hold the licenses. And sure enough, the FCC could ultimately revoke the licenses. It's very rare. Typically there's a fine or a warning as we, as we know.

Yeah, exactly. I, I'm just wondering, you know, if I'm Brendan Carr, kind of what's my endgame here?

That's a great question. And I, I wouldn't want to fi— to, to, to, to get inside his head and say what his endgame is. It appears from the outside that he is, he is doing the bidding of, of President Trump. In terms of silencing speech or going after speech that President Trump doesn't like. And also there's a synergy between his power at the FCC, right? Leveraging that in Trump's own lawsuits. And we saw that in particular with the CBS Kamala Harris lawsuit that President Trump filed. So at the same time that President Trump had his lawsuit going, which when you now Settled, right, for $16 million. At the same time, he was suing CBS over the Kamala Harris interview. Brendan Carr and the FCC were investigating CBS over that for alleged violations of this news distortion policy, of the news distortion policy. And hanging in the balance, as we know of this, was the merger between Paramount, which owns CBS, and Skydance Media. And so to facilitate that, to help that merger go through, would be to have Trump's lawsuit cleared off the table. So we really saw this synergistic interplay happening of many things, of Trump suing CBS at the same time. Then Carr and the FCC are investigating CBS for a news distortion policy. CBS in the meantime is saying it, owned by Paramount. We want to have this merger with Skydance, but we gotta get the FCC's approval for that. And then part of that settlement, as we know, was that CBS now, as you know well, has to have a bias monitor installed at CBS News, an ombudsman.

Yeah.

Uh, to ferret out bias or to handle complaints about bias in CBS's news coverage. Now that's really a step, isn't it? It's really that, uh, a government settlement requires, uh, a network news, CBS News, uh, to install a monitor and ombudsperson, uh, to handle complaints about bias. That clearly could have a chilling effect on speech and news independence.

Yeah. And also I wanted to ask your opinion on all of those lawsuits that are being settled. Does that erode First Amendment rights? Does it weaken what, what we understand of the First Amendment by going ahead and saying, okay, yeah, let, let's settle and just get the issue behind us?

I think anytime a media entity settles a lawsuit, uh, particularly one that may not have a great deal of merit, and I'm not saying these did or didn't, but particularly some that probably don't have a great deal of merit. It makes it just that much easier the next time to settle, right? One domino falls, the next will fall. We almost establish a benchmark of what these cases are worth, right? CBS 60 Minutes, that's $16 million, right? We've seen other ones that's $20 million for ABC, right? We start putting some numbers on what these will settle for. And then, okay, Now it becomes simply, well, we're gonna sacrifice, uh, some free speech. We're not gonna fight for it. Uh, and we know here it's a cost of doing business now with Trump. Uh, here's your $16 million, here's your $20 million. And, and that, that's a sad thing, at least in my opinion.

It's, it's almost become the going rate for a nuisance suit, right? Where it used to be something like $50,000 and now it's, you know, a handful of millions. So from your perspective, how do we go about starting to turn this around? Sure.

I mean, I think the Jimmy Kimmel reaction was very important actually to that. You had many people canceling, you know, their Disney+ subscriptions, other, and Disney owns ABC. You had public protests, people on the streets of LA to get them to come out is pretty impressive, right? They're actually protesting. Then you had Ted Cruz, uh, from Texas, uh, a Republican, right? Very conservative Republican. Typically we think about him. He finally comes out and he says, no, you're acting, Brendan Carr, like a mafioso. That's what he said, right? He even did the fake Italian accent, right? You know, and he says, he says, oh, you got this nice little restaurant here, you know, or bar, you know, it'd be bad if something happened to it. And what he was talking about was Carr's statement, right? Again, we can do this the easy way or we can do this the hard way. And then I think Rand Paul also came out and criticized it. And so you had several Republicans. And so anytime, you know, we have a public reaction and then you have some members of the Republicans, some, a few at least, finally willing to speak up, that's how the pushback ultimately begins. I think that's how it really starts. But I don't think it's, we're over it yet. And we'll, we're going to have to see. What I'm curious about is how Jimmy Kimmel's, you know, monologues and routines and his questions to his guests will go. Are, is he going to pull punches? Is he not going to talk about certain subjects? How's that going to look going forward? And, you know, one day at a time, we'll see what happens this week. We'll see what happens next week and we'll see what happens next month. It was heartening to see the other comedians, I think, come out and clearly support him on their shows. The other talk show hosts, late night talk show hosts. I think that was very important too, that they're all united. It's not simply that, oh, you work for ABC, you work for CBS, Colbert's at CBS. Oh, it's not like we're rivals here. They're all in the same business. And it's important that they stick together in terms of preserving what it is that they do as a format of television. And again, if you don't like their shows, don't watch 'em. And if enough people agree and don't watch it, there'll be no dollars there for advertisers. Advertisers will say, we don't want to advertise with you, and the show will go off and there'll be a new one. And that's the marketplace solution to these situations, not a governmental intervention one.

The Fair Media Council is a 501 nonprofit organization advocating for quality news and working to create a media-savvy society. For more information about the Fair Media Council and upcoming Fast Chat shows, check out fairmediacouncil.org. Hi, I'm Jaci Clement.