Randy Holmes

The United States Constitution outlines a series of non-negotiables – fundamental, inalienable rights of American citizens. The First Amendment guarantees freedom of religion, speech, the press, freedom to assemble and to petition the government. I believe the language of this amendment is relatively vague, leading to debates in both the Supreme Court and the court of public opinion. Essentially, the question becomes: when and how can the government regulate Americans in regard to these rights? In regard to speech, some speech is regulated by the government, such as incitement and fighting words. On the other side of that coin, some types of speech are more highly protected, such as political speech. So, it’s no surprise that Jimmy Kimmel getting pulled off air for speaking on the conservative reaction to the assassination of Charlie Kirk has ignited a conversation about whether or not freedom of speech for not only the press but also Americans is under attack. 

Was what Kimmel said about the conservative reaction – claiming Kirk’s assassin belonged to the MAGA crowd – actually offensive? Was it a cheap shot in the midst of a very public tragedy? Well, you can decide for yourself. Was it protected by the First Amendment? That one I will answer for you: Yes. Is Kimmel, as an employee of a private company, allowed to say whatever he wants on national television? I will answer this one too: No.

Kimmel is in no position to be prosecuted for what he said, although President Trump and most conservatives find his words to be wildly offensive. Offending someone or even an entire group of people, though, is not a crime in the United States. Getting pulled off the air, albeit temporarily, is not a form of criminal or civil prosecution. ABC, however, has no obligation to employ Kimmel. Many of the contracts that these networks sign with their employees include morals clauses, meaning these networks are allowed to take anyone off the air for saying something that does not align with the beliefs held by the company as a whole. When it comes to public figures speaking on television, they can be fired simply for being unpopular. 

One could argue that Kimmel, as an employee, misrepresented the company’s interests in his comments in the midst of a clearly sensitive and divisive moment in American history, no matter which side you are standing on. If ABC watches their ratings and viewership fall because an employee misrepresented their interests, they have every reason to fire said employee. But is this the issue that people are focused on? Not really. 

The water was muddied when Brendan Carr, the chairman of the Federal Communications Commission (FCC), got involved. Suddenly, the situation escalated from the actions of a private company protecting its interests to a governmental attempt at regulating private and political speech. Speaking on a podcast, Carr alluded to Kimmel’s suspension by stating that “this is a very, very serious issue right now for Disney” and that this could be done “the easy way or the hard way.” Almost immediately, Kimmel was indefinitely suspended. Carr effectively tipped the scales against Kimmel, putting pressure on Disney – who owns ABC – to take action that would essentially punish Kimmel for speaking against the political right. This is a tricky situation to unpack, mostly because Carr’s statement did not do anything concrete. No explicit actions were taken that can be pointed at as an attack on free speech but it would be amiss to say that Carr did not put government pressure on a private company. 

This past week, Kimmel was put back on air, coming back with a heartfelt monologue in which he clarified his intentions. Kimmel noted that he did not intend to make light of the murder of Kirk. However, most Republicans are unsatisfied with this monologue and with Kimmel’s reinstatement overall – including the president. President Trump slammed Kimmel and ABC on the social media platform Truth Social following Kimmel’s return, referring to ABC as “ABC Fake News” and to Kimmel’s content as “99% positive Democrat GARBAGE.”  The most striking part of what the president said is as follows: “I think we’re going to test ABC out on this. Let’s see how we do. Last time I went after them, they gave me $16 Million Dollars … A true bunch of losers! Let Jimmy Kimmel rot in his bad Ratings.”

This is what it seems people are worried about: at the end of the day, ABC and Disney can do whatever they want. These networks can fire Kimmel, put him back on air for the rest of his life, let him say the most outrageous political statements you’ve ever heard or keep him to a perfectly written script. A private company can regulate the speech of its employees when those employees are speaking on their behalf. However, the FCC and the President of the United States may be crossing a boundary in this regulation of speech. 

I’m not here to tell you what to think about this. What I will say is that it is time to pay attention. Is our freedom of speech as American citizens under attack? Maybe, maybe not. You decide.