Thomas A. Berry
ABC has announced that it is suspending Jimmy Kimmel’s late-night show indefinitely. This comes in the wake of two important events. First, Kimmel delivered a monologue in which he said that “The MAGA Gang” was “desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them.” And second, FCC Chairman Brendan Carr said in an interview that there is “a strong argument that” Kimmel’s monologue was “sort of an intentional effort to mislead the American people about a very core fundamental fact.” Carr also pointedly remarked that, “This is a very, very serious issue right now for [ABC parent company] Disney. We can do this the easy way or the hard way. These companies can find ways to take action on Kimmel, or there is going to be additional work for the FCC ahead.”
If ABC had taken action against Kimmel solely on its own volition, there would be no First Amendment problem. But given Carr’s remarks, there is strong reason to believe that ABC took action in part to avert his not-so-veiled threat of government action. My colleague Brent Skorup has explained how the Supreme Court wrongly allowed broadcast networks to have only “junior varsity” First Amendment rights, giving the FCC far too much power to regulate speech over the airwaves. And my colleague David Inserra has put this incident in the broader context of several government actions that have threatened free speech in the wake of Charlie Kirk’s murder.
In this post, I’ll focus on the problem with Carr’s stated justification for putting pressure on ABC: the inaccuracy of Kimmel’s implication that Charlie Kirk’s killer was “MAGA.” Regardless of the truth or falsity of Kimmel’s remark, the government should not serve as the arbiter of truth in public debate. To the extent the FCC has been granted that power and the Supreme Court has allowed the FCC to wield that power, this only demonstrates how out of step the law of broadcast television has become in comparison to the American free-speech tradition in other contexts.
The Supreme Court explained why the government should not have a general truth-policing power in United States v. Alvarez (2012), a case about the “Stolen Valor Act.” That act made it a criminal offense to lie about having won certain medals and honors, even if the lie was not part of any fraud. The Supreme Court struck down the act, with Justice Anthony Kennedy’s plurality opinion noting that “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”
Indeed, when the government takes upon itself the task of censoring falsehoods, the result can be counterproductive. Just as censoring a flawed political argument makes that argument harder to rebut, censoring a false statement makes it harder to disprove. Thus, as Justice Kennedy explained, “suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse.” For all these reasons, as Kennedy continued, “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”
Relatedly, granting such power to the government would lead to many true statements being accidentally censored as false, for the simple reason that no one (including government officials) will get every call right. As John Stuart Mill observed in his classic essay On Liberty (1859), “Those who desire to suppress” purportedly false speech “of course deny its truth; but they are not infallible. … To refuse a hearing to an opinion because they are sure that it is false is to assume that their certainty is the same thing as an absolute certainty. All silencing of discussion is an assumption of infallibility.”
Relatedly, government “truth police” could easily cherry-pick particular examples of falsehoods on disfavored networks and use those falsehoods as a justification to punish the networks or speakers. As Justice Stephen Breyer wrote in a concurring opinion in Alvarez, “the pervasiveness of false statements … provides a weapon to a government broadly empowered to prosecute falsity without more. And those who are unpopular may fear that the government will use that weapon selectively, say, by prosecuting a pacifist who supports his cause by (falsely) claiming to have been a war hero, while ignoring members of other political groups who might make similar false claims.”
President Trump and others in his administration can and have pushed back against speech they disagree with and speech they believe to be false. That is their right, so long as their counterspeech does not cross the line to threats of government power. As Justice Kennedy wrote in Alvarez, “[t]he Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. … [T]he dynamics of free speech, of counterspeech, of refutation, can overcome the lie.”
Government coercion to censor speech is wrong no matter which party is in power. We should all be concerned when the government takes upon itself the role of policing “truth” and uses that mantle as a tool to threaten and punish disfavored speakers.