Do Not Give Up The High Ground On Freedom Of Speech!

Manhattan Contrarian ^ | 20 Sep, 2025 | Francis Menton

[MtnClimber]

The four years of the Biden presidency were a terrible low point for the protection of freedom of speech in the U.S. A web of government agencies and allied NGOs sprang up with remarkable rapidity to identify and ban disfavored speech, almost always of conservatives. As just a few examples: the White House itself pressured social media platforms to suppress disfavored speech on politically sensitive topics like Covid and climate change; the Cybersecurity and Infrastructure Security Agency collaborated with universities and NGOs like the Stanford Internet Observatory to get disfavored speech banned or suppressed; the Department of Homeland Security formed a Disinformation Governance Board to coerce social media companies to suppress speech deemed “disinformation”; and the FBI conducted wide-ranging investigations of Republican politicians and organizations. The entire enterprise got the accurate nickname of the Censorship Industrial Complex.

This was an extremely important issue that drove many voters to Trump. After Trump was elected, we had every reason to expect that efforts like those of the prior administration to coerce the suppression of opponents’ speech of would come to an end. And, for the most part, they have.

However, the past week has seen two bad unforced errors on the freedom of speech front by high-ranking members of the Trump administration:

Pam Bondi. Attorney General Pam Bondi appeared on a podcast with someone named Katie Miller that aired Monday, September 15. NBC News has some quotes of key statements made by Bondi:

Asked if the Justice Department would be cracking down on groups that engage in such speech, Bondi said, “We will absolutely target you, go after you, if you are targeting anyone with hate speech, anything — and that’s across the aisle.” . . . “You can’t have that hate speech in the world in which we live,” she said. "There is no place, especially now, especially after what happened to Charlie, in our society,” Bondi said, referring to Charlie Kirk, the conservative activist who was assassinated on a college campus in Utah last week.

Brendan Carr. Carr, Chair of the Federal Communications Commission, appeared on Wednesday, September 17, on a podcast with someone named Benny Johnson. Quotes of the key sections of the interview can be found at this article in Reason:

Carr warned that there are "actions we can take on licensed broadcasters" that carry Kimmel's show. He said it is "really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast [which owns NBC] and Disney, and say, 'Listen, we are going to preempt, we are not going to run, Kimmel anymore until you straighten this out, because we licensed broadcaster[s] are running the possibility of fines or license revocations from the FCC if we continue to run content that ends up being a pattern of news distortion. . . . When you see stuff like this—I mean, we can do this the easy way or the hard way," he 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."

Both of these statements were badly out of line as a matter of law and policy. But they were also politically damaging. Republicans in general, and Trump in particular, have fought an endless battle to preserve freedom of speech and to claim the high ground of being the protectors of free speech. They need to keep this high ground.

Take Bondi’s remarks first. So-called “hate speech” is absolutely protected by the First Amendment. The Supreme Court has been completely clear on that. The line between protected and not-protected speech is imminent incitement to violence. The Attorney General needs to know these basic principles.

The problem with the supposed “hate speech” category is that identifying it is a judgment call. The left thinks that most everything conservatives and Republicans say is “hate speech” — and if hate speech could be made illegal, and they came to power, their definitions would be enforced with arrests and prosecutions. In the UK, where “hate speech” is illegal, the police have been on a campaign of arresting dozens of people for perceived speech crimes (while completely ignoring, for example, rape gangs). In August a man was arrested for shouting “We love bacon” outside the site of a proposed mosque. Hate speech? Christians have been arrested under the same laws for praying silently.

On Tuesday, September 16, Bondi issued a post on X that appeared intended to correct or modify her statements on the Miller podcast:

Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It’s a crime. For far too long, we’ve watched the radical left normalize threats, call for assassinations, and cheer on political violence.

That’s better, but I think still not a completely correct statement of the law. Although I am not an expert on the First Amendment, I recommend the community note that X has affixed to Bondi’s tweet for what I think is a more accurate statement of the case law:

The Supreme Court ruled it legal to "justify" or celebrate violence or "advocate or teach the duty, necessity, or propriety" of it; but not "incitement" to "imminent" violence (eg telling a mob with weapons to kill someone).

Bondi’s statements on the podcast drew what many took to be a rebuke from none other than Justice Sonya Sotomayor (although Sotomayor did not call out Bondi by name), speaking on a panel at New York Law School on September 16:

“Every time I listen to a lawyer-trained representative saying we should criminalize free speech in some way, I think to myself, that law school failed.”

Can we hope that Justice Sotomayor might even stand up for free speech of someone she disagrees with in an important case? Probably not. Most recently, in the major case of Murthy v. Missouri — the 2024 case challenging massive government-coordinated speech suppression on issues of Covid lockdowns, masks and vaccines — Sotomayor joined with her liberal colleagues plus Roberts and Barrett to find that none of the plaintiffs had “standing” to complain.

Carr’s statements are exactly the sort of regulatory overreach that conservatives constantly point to as a fundamental problem with the federal bureaucracy. The FCC has the ability to approve or revoke broadcast licenses, and to approve or disapprove corporate transactions among media companies. Therefore, the Chair does not actually need to do anything more than make a veiled suggestion to get regulated entities to toe a political line. And here Carr was not just making a veiled suggestion.

Carr’s remarks drew massive criticism from Democrats in Congress and the media. Yes, these are all people who never said a word about the Biden administration’s Censorship Industrial Complex directed at Republicans. So, they are hypocrites. But Carr never should have given them this opportunity to criticize him. It is likely that Kimmel’s show was losing money, and that Disney/ABC was looking for an excuse to cancel it. But once Carr made his remarks, the firing will always look like bowing to government coercion. And maybe it was. It would have been much better if Kimmel’s firing had been done as a pure business decision, without apparent government interference.

Can we take this opportunity to ask, exactly what function does the FCC perform today? The FCC was created in 1934, in the pre-television era of a small number of radio stations. Two decades later, the FCC was regulating the shared oligopoly of three television networks. At least in that environment you could articulate a rational case for government regulation. Today, there are hundreds of channels and streaming services, distributed over the air and by cable and satellite and wifi. Most of that isn’t even regulated by the FCC. If the FCC were abolished, would anybody miss it?

[MtnClimber]

Don’t forget that the left successfully banned President Trump from social media.

[Uncle Miltie]

Isn’t Kimmel’s patent lie about MAGA responsibility for the Kirk assassination a violation of FCC rules for broadcast stations?

And yeah, Bondi was an idiot. There is and should be no such thing as “hate speech”.

[MtnClimber]

Manhattan Contrarian ping

[nathanbedford]

A reply from 2 days ago:

With a few intemperate remarks Pam Bondi, Donald Trump and Brendan Carr needlessly converted a victory we had already won into a liability.

What were they thinking? The base was fully convinced, and had been for some time, that Jimmy Kimmel was an irrelevant, unfunny, leftist, loser. Not a single vote for or against a Republican or a conservative from within our base was advanced beyond what was already in the bank. Much of the electorate had moved to Donald Trump's favor in 2024 because of the blatant corrupt lawfare that had been waged against Donald Trump on so many television screens. Those votes would come to the Republican side again, unless we did something to offend them. We did.

We threatened to wage regulatory warfare and censor free speech that arbitrarily offended us. We threatened to commit the very sin that aided Donald Trump's election. We made hypocrites of ourselves. We played the fool. We exposed ourselves to the world that we were so determined to honor Charlie Kirk as an icon of freedom of speech and open debate that we would shut down free speech to perversely honor his legacy. Our behavior was so hypocritical that we opened ourselves to the allegation that our indignation over the remarks of Jimmy Kimmel was nothing more than opportunistic and cynical political self interest, an egregious attempt to seize the organs of communication.

All of this was so unnecessary, the vast majority of American opinion had already concluded that Jimmy Kimmel was a churlish icon of a very unattractive political philosophy. His remarks were a grotesque exploitation of the tragedy of Charlie Kirk's death and the bereavement of this widow and orphans. All the political points that seem to be so important to those on this forum who would disregard the First Amendment had already been secured but were to be squandered when we abandoned the deathless language: "Congress shall make no law respecting the freedom of speech."

To add irony to the perversity of this situation, a report has emerged this morning that ABC is moving toward an agreement with Jimmy Kimmel to put him back on the air. Now we have a lose, lose, lose. We destroy our own reputation while Jimmy Kimmel is martyred, resurrected, and vindicated.

The FCC is prohibited from general censorship; Section 326 of the Communications Act states “no regulation [shall] interfere with the right of free speech” via broadcast. (Emphasis supplied). The First Amendment does not exist for the benefit of Jimmy Kimmel alone but to protect every member of our society who seeks information and opinion free of government control. It matters not if Jimmy Kimmel deserved everything he got; the question is, are our constitutional rights safeguarded?

But the loss so far described was but the loss of a skirmish in the war to come over control of our media and with it the war for the soul of our country. When the time comes for the executive branch of our federal government to pass judgment on proposed multimillion dollar mergers that will control thoughts for the entire nation by way of mergers and acquisitions that might or might not be contrary to antitrust and other laws, President Trump will be predictably accused of political bias.

Our paroxysm of indignation gains us nothing and risks everything.

[DeplorablePaul]

Kimmel: Je suis Jussie

The only thing Kimmel did different than Jussie Smollett is not wear a noose.

[RightOnTheBorder]

Every one of these Carr critics needs to check out 47 CFR 73.1217, Broadcast Hoaxes. Kimmel clearly violated it. The idea that we should not enforce the law because leftists might twist it to use against us has proven futile because the left is only restrained by an opposing power, not laws or norms, or traditions.

We need to take every violation and cram it down their throats, it’s not lawfare when they actually break the law. Perhaps if leftists suffer enough consequences at the hands of regulators they will get on board with things like reducing federal regulations.

[sauropod]

.

[Bonemaker]

Same goes for “hate crimes”.

[Bonemaker]

Insults, taunts, challenges, defamation of one’s mother etc are not free speech... they are fighting words. Where I grew up on the south side of Chicago, said words typically resulted in unwanted dental bills and procedures for the perpetrator. Now they result in funeral bills.

[Teacher317]

You're stretching the definition of "Fighting Words" a little bit... not every insult qualifies, etc... but yes, the limits to Free Speech are there... endangering others, causing others to act violently, etc, is the main exception.

Saying things that are rude or impolite (like words in poor taste about the Charlie Kirk memorials) does not run afoul of that line... but as we all know, the 1st is about limiting Government action, not limiting private persons and companies.

[nathanbedford]

Every one of these Carr critics needs to check out 47 CFR 73.1217, Broadcast Hoaxes. Kimmel clearly violated it.

I did check it out, it does not fit, there is no violation. The fact that you do not set forth the elements of 47 CFR 73.1217 suggests that you suspect as well that it does not fit.

[RightOnTheBorder]

CFR 73.1274

(a) No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or a catastrophe if: (1) The licensee knows this information is false;-check

(2) It is foreseeable that broadcast of the information will cause substantial public harm, and-check

(3) Broadcast of the information does in fact directly cause substantial public harm.-check

(b) Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.-no disclaimer

(c) For purposes of this rule, “public harm” must begin immediately, and cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties. The public harm will be deemed foreseeable if the licensee could expect with a significant degree of certainty that public harm would occur. A “crime” is any act or omission that makes the offender subject to criminal punishment by law. A “catastrophe” is a disaster or imminent disaster involving violent or sudden event affecting the public.-blood libeling conservatives has deadly results, as we have just seen

[nathanbedford]

(1) you have to show the state of mind and prove it.

That means you have to show that the opinion expressed was known to be wrong at the time it was expressed. Good luck with that.

(2) you have to show foreseeability of substantial public harm.

Section (C) tells us that the public harm must begin immediately and cause direct damage. Since no such harm occurred, there is no foreseeability. Especially difficult to prove, even had harm actually occurred, is the standard of "significant degree of certainty the public harm would occur." Nothing "immediate" happened.

(3) you have to show direct cause of actual harm

no harm, no foul

The assertion "blood libeling conservatives has deadly results, as we have just seen" is an absurdity. You haven't "shown" anything by concluding that something has been "seen." Asserting a slogan, a shibboleth, does not make it so. There has been no actual "blood libeling by the comedian. A distasteful remark is not a blood libel, indeed, the concept of "blood libel" has no justiciable meaning.

The fact that the program is a comedy show and not a news program affords the actor greater latitude.

Finally, Kimmel himself is neither a licensee nor permittee. The licensee cannot be shown to have violated any of the above discussed clauses.

[RightOnTheBorder]

Taking an academic approach to people who want you dead seems rather unwise. Kimmel is an employee of the network, he pushed a vile hoax, and there is no downside to enforcing regulations the democrats love so much and making ABC defend against them. Perhaps ABC’s lawyers will echo your arguments and win but I believe it worth the effort. Worst outcome is a court precedent weakening a regulatory body.

[nathanbedford]

“there is no downside to enforcing regulations the democrats love so much and making ABC defend against them.”

But of course there is downside and that is the whole point of objecting to our government shooting from the hip and leaving itself open to committing the very same lawfare outrages that were done against us.

We have just abandoned the high ground of our First Amendment sacred safeguard of free speech.

See my reply of some days ago:

https://freerepublic.com/focus/chat/4342012/posts?page=5#5