by John Ellis
Six months ago, on March 13, I wrote that “it may be time to begin planning a farewell party for free speech in America.” As it turns out, if you haven’t already baked your “Farewell, Free Speech” cake, you may no longer have the time to do so. At the very least, you better already have the batter mixed and the oven preheated, because Donald Trump and his goons have landed a resounding blow against free speech with the indefinite suspension of Jimmy Kimmel Live! by ABC. Scarily, Trump is only getting started.
When I woke up this morning, I intended this article to be less than 500 words. It was going to be short and cheeky. One of my main – if not my only – objective was going to be simply to register my acknowledgment that the silencing of Jimmy Kimmel highlights how my warning from six months ago is turning out to be prescient (although, I don’t think it took/takes a prophet to “predict” any of this). Well, things change, and quickly. After opening my laptop, and before clicking on the Word icon to begin writing, I glanced at the NBC News’ website to see if any major news events happened while I was sleeping. While not necessarily major in the sense of a tragic earthquake or war breaking out somewhere, and technically not having happened while I was sleeping, the headline “Trump suggests FCC could revoke licenses of TV broadcasters that give him too much ‘bad publicity’” woke me up before my coffee did.
I’ve linked to that NBC article here, but this is the meat of it:
Speaking to reporters, Trump suggested that the Federal Communications Commission should revoke broadcasters’ licenses, arguing that many late-night hosts appearing on those networks are “against me” and that “they give me only bad publicity, press.”
“I mean, they’re getting a license. I would think maybe their license should be taken away. It will be up to Brendan Carr,” Trump said on Air Force One, referring to the FCC chairman. “I think Brendan Carr is outstanding. He’s a patriot. He loves our country, and he’s a tough guy, so we’ll have to see.”
Trump also said of evening shows on network TV: “All they do is hit Trump. They’re licensed. They’re not allowed to do that. They’re an arm of the Democrat Party.”
Later in the article, NBC points out, “Carr warned during a Fox News interview Thursday afternoon that Kimmel’s suspension was not the ‘last shoe to drop.’
“This is a massive shift that’s taking place in the media ecosystem. I think the consequences are going to continue to flow,” Carr said.
He made similar comments earlier in the day on CNBC, saying, ‘We’re not done yet.’”
The First Amendment’s role in free speech is often misunderstood. People will often complain that their right to free speech is being trampled on when their boss, for example, forbids certain types of speech in the workplace. However, if your boss suspends you for something you say at work, that is not a violation of your Constitutional rights. The First Amendment forbids the federal government (and state and local governments via the Fourteenth Amendment’s incorporation against the states) from punishing speech. This doesn’t mean that all speech is protected, and I’ll get to that aspect of the First Amendment later in this article. The government – federal, state, or local – cannot (at least, they’re not supposed to according to the Constitution) punish me for this article or any other article I’ve written criticizing Donald Trump (unless they can demonstrate that my speech violates the free speech test established by the decision in Brandenburg v. Ohio, which I’ll explain later). The Constitution extends that same protection to late night talk show hosts, whether you, I, or Donald Trump like what they say or not.
Some of the current conversations can become tricky, though. Take, for example, CBS’s cancellation of The Late Show with Stephen Colbert. While the cancellation appears to be politically motivated, there is no proof of that, as far as I know. CBS claims it was purely a financial decision. Some, like me, believe it’s evidence that something is rotten in the state of this country. Trump’s using the White House platform from which to dance on the (soon-to-be) grave of The Late Show with Stephen Colbert adds to the stench. The President’s language before and after the fact should be a huge, bright red warning sign flashing in the cultural night sky. That warning has passed its usefulness though, because Donald Trump and his administration have now begun openly wiping their greasy, disgusting asses with the U.S. Constitution, starting with the First Amendment.[1]
Unlike Stephen Colbert’s cancellation, the indefinite suspension of Jimmy Kimmel is not a tricky conversation. It’s cut and dried (for anyone not in lockstep with Trump). For sure, ABC has the right to suspend Kimmel, or any of their talent, for a myriad of reasons. The problem – the Constitutional problem, to word it lightly – is that the FCC chair Brendan Carr used his office to pressure ABC to punish Kimmel. That is a direct violation of the First Amendment. Thankfully, some Republicans, like Tucker Carlson, have spoken out, sounding the warning that the First Amendment is under attack at the hands of Donald Trump and MAGA. We’ll see if enough Republicans stand up to Trump to make a difference. I highly doubt enough will, though, as evidenced by Trump’s promise of continued attacks on the First Amendment highlighted in the NBC News’ article from above, not to mention the cheering and rejoicing of ABC’s capitulation to Trump’s administration by many within MAGA.
The Supreme Court has clearly defined the limits of the government’s ability to censor speech. In the Supreme Court’s 1919 decision in Schenck v. United States, Justice Oliver Wendell Holmes, Jr., writing the majority (unanimous) opinion, introduced the concept “clear and present danger” as the First Amendment’s limits.
Members of Philadelphia’s Socialist Party, led by Charles Schenck, distributed over 15,000 pamphlets attempting to persuade men to resist being drafted into the US military. Schenck and his co-defendants were subsequently convicted under the Espionage Act of 1917. They appealed their conviction to the United States Supreme Court. It was one in a string of First Amendment cases that the White and then Taft Courts ruled on, but it stands out for the aforementioned introduction of the free speech test of “clear and present danger” into American jurisprudence.
While the decision in Schenck v. US was eventually overruled in 1969’s Brandenburg v. Ohio (I’ll get to that shortly, I promise), Holmes argued that while Charles Schenck and his fellow defendants would normally be protected under the First Amendment, since they had enflamed resistance to the draft during wartime (WWI), their “words used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to permit.”[2] Within a decade, though, the Court began to confront itself with the potential misuse of the “clear and present danger” test.
Writing a concurring opinion in 1927’s Whitney v. California, Justices Louis Brandeis and Holmes argued that the “clear and present danger” test needed to be revisited. The two justices had become aware that “clear and present danger” was too open ended and could lead to the government justifying the suppression of political speech it doesn’t like. In other words, Brandeis and Holmes believed the Supreme Court needed to define what it means by “danger.”[3] It wasn’t until the decision in 1969’s Brandenburg v. Ohio that the Court took up that challenge and better defined “danger,” drawing an even tighter rein on the government’s authority to restrict speech.
The Warren Court is almost universally loathed by conservatives. Going back to Brown v. Board, but really kicking into high gear with JFK’s appointment of Arthur Goldberg to the Supreme Court in 1962, the Warren Court issued some of the most progressive rulings in Court history: Engel v. Vitale (62), Abington School District v. Schempp (63), Reynolds v. Sims (64) Griswold v. Connecticut (65), Miranda v. Arizona (66), and Loving v. Virginia (67), to name a few. While not all the decisions I listed are hated with equal measure (or even at all) by all conservatives, some are almost universally hated among MAGA (particularly the first two on the list). Brandenburg v. Ohio, though, is a decision that conservatives seemingly, at least until recently, agreed with.
In 1964, a television station covered a KKK rally at the invitation of KKK leader Clarence Brandenburg. The subsequently televised footage included boiler plate KKK racist invectives and threats and a planned march on Washington, D.C. on July 4. Brandenburg was convicted under Ohio’s criminal syndicalism act for inciting violence. The conviction was appealed all the way to the U.S. Supreme Court, where his conviction was overturned. In the per curiam opinion[4], authored by Justice Brennan, the clear and present danger test was changed to “imminent lawless action.”
Even though the KKK rally was peppered with racist, hateful speech, and even calls for the deportation of African-Americans to Africa and Jews to Israel, the Court found that none of it rose to imminent lawless action. They determined that Ohio had violated Brandenburg’s First Amendment rights.
To help see the “imminent lawless action” test even more clearly, imagine, for example, that I write an article about how much I hate Jerry Jones for what he’s done to the Dallas Cowboys and call for his citizenship to be revoked and for him to be deported to Svalbard. While hateful and wrong, that imaginary article is not speech that meets the imminent lawless action test. On the other hand, if I were to stand outside Jones’ house with a group of angry Cowboys fans and angrily scream, “Let’s go get him, tie him up, and put him on a plane to Svalbard!”, my speech is now open to prosecution. (Disclaimer because of the times we live in: I do NOT hate Jerry Jones. I do NOT want his citizenship revoked. And I do NOT want him to be deported. And I denounce in no uncertain terms anyone who tries to kidnap him and I believe they should be arrested and prosecuted).[5]
The decision in Brandenburg v. Ohio means that I cannot stand outside the White House and encourage already angry people to storm the U.S. Capitol. That speech falls under both imminent and violent. I can, however, use my platform as a late-night talk show host (if I had that platform) to call out the hypocrisy of Republicans in the wake of the assassination of Charlie Kirk. That is not even close to being imminent and violent. All this adds up to the undisputable fact that Brendan Carr (and the Trump administration) has deliberately and blatantly trampled over the Constitution to unlawfully violate Jimmy Kimmel’s First Amendment rights. Furthermore, if Trump follows through on his threats posted above, and why would anyone believe he won’t, he will further the erasure of the rule of law in this country and take another step towards establishing his dictatorship.
Addendum: After hitting publish, I saw my wife had emailed me a link to a related article. It’s really good and I commend it to you – “We’re In the Cancelling Talk Show Phase of Free Speech Crackdowns”
[1] I don’t normally defend my use of language others might find offensive. This time, though, I think it’s important for people to be confronted with how obscene and disgusting Trump and MAGA’s actions are. And I want to confront my more conservative readers both through my use of an “obscene” word/imagery in the article and with an explanation in this footnote. Regardless of what you think about people, but especially Christians, using so-called obscenities, there are times when obscene language is the only appropriate response to obscene actions.
[2] The opinion can be read by clicking here.
[3] The Whitney decision did add “bad tendency” to the test.
[4] Meaning that the opinion was the whole court’s and not an individual.
[5] I mean, I hate the Dallas Cowboys, so I LOVE Jerry Jones and hope he lives forever, which will ensure that the Cowboys never win another Super Bowl. I believe that we should protect Jerry Jones at all cost.
Practically Known Theology 