Freedom of Speech

It’s complicated.

The debate over “Freedom of Speech” has been in the news lately, highlighted by ABC’s decision to suspend late-night talk show host Jimmy Kimmel for his comments regarding the murder of Charlie Kirk.

Many on the right (with the exception of a certain senator from Texas) applauded the decision by the network claiming his remarks were incendiary and went beyond the bounds of social norms.

The left meanwhile cried out the network was submitting to the cancel culture, taking away Kimmel’s freedom to say what he wanted and that his monologue was protected by the US Constitution.

The First Amendment to the United States Constitution says…

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This doesn’t mean all speech is free because the government can place reasonable restrictions on speech that constitutes true threats, defamation, harassment, incitement to violence, or obscenity.

Like I said, it’s complicated. Now let’s try to define reasonable.

What got Kimmel in trouble was saying, among other things, was that Trump and his allies were “desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them” and trying to “score political points from it”.

He also spoke about flags being flown at half-mast in honor of Kirk and mocked President Donald Trump’s reaction to the shooting.

Facing heat from the FCC and several affiliates (Nexstar Media and Sinclair), ABC suspended Kimmel saying in part…

Last Wednesday, we made the decision to suspend production on the show to avoid further inflaming a tense situation at an emotional moment for our country. It is a decision we made because we felt some of the comments were ill-timed and thus insensitive.

Many on the left condemned the move as censorship and a threat to free speech while President Trump welcomed Kimmel’s indefinite suspension as “great news for America”.

So, did those comments reasonably cross the line of being a threat, defamation, harassment, incitement to violence, or obscenity?

It’s even more complicated in today’s hyper social media world.

Brendan Carr, chair of broadcast regulator, the Federal Communications Commission (FCC), certainly thought so. Carr accused Kimmel of “the sickest conduct possible” and demanded an apology even offering a veiled threat saying, “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.”

Carr also thanked Nexstar Media “for doing the right thing” and went on to say he hoped other broadcasters would follow its lead (ironically, Nexstar Media is currently seeking FCC approval for its planned $6.2 billion merger with Tegna so there may be another agenda here).

The FCC has been known to revoke the broadcast license of media outlets from time to time. In April 1987, the FCC’s board recommended the cancellation of WBUZ-AM’s license to operate in Fredonia NY. The community had complained that the station’s owner refused to grant equal time to opposing views surrounding matters concerning public housing, local police, and a water fluoridation project as required under the Fairness Doctrine at that time.

Why do I use this example? Ironically, the station was licensed to operate where I went to college and where I held my first paid radio shift (but well before all this took place).

It gets even more complicated.

Another factor to consider in all this is that Kimmel is an employee of ABC and under contract to perform. Does an employer have the right to control/limit/censor what their employees say? What if Kimmel’s comments caused the network to lose money (the claim CBS has made about removing The Late Show with Steven Colbert)? Does the company and shareholders have no right to protect themselves?

Here in the Lone Star State, the Texas Education Agency is investigating more than 280 complaints against teachers who have been accused of making inappropriate comments online about Kirk’s death with several educators already being punished for allegedly doing so.

Freedom of speech applies to all levels of government, both federal and state, but does not apply to private entities like companies, which can regulate speech on their platforms or in their workplaces. Whether or not you consider educators to be state government employees is a whole other question.

United States Supreme Court Justice Potter Stewart famously said “I know it when I see it” in 1964 to describe why the material at issue in the Jacobellis vs. Ohio case was not obscene and therefore was protected speech that could not be censored.

So, if we use Stewart’s baseline to determine what is appropriate free speech and what isn’t, all we have to do is decide…who decides.

Like I said, it’s complicated.

I think we’ve been here before

Like a bad acid flashback, the 2020’s are starting to feel like the 1960’s. Deep political divide, assassinations and controlling what is allowed to be said (and what isn’t) dominates the national conversation.

The 1960’s included the Vietnam War which led to nationwide protests and a growing division in the nation. The decade also witnessed political turmoil with the assassinations of President John F. Kennedy, his brother Robert, Malcom X, and Martin Luther King.

The era experienced an uprising in social norms that included shifting ideas about sexuality and religion. It also saw the emergence of the “generation gap” between younger and older generations which led to a counterculture movement that challenged traditional norms with new forms of music, fashion and large-scale events like the Woodstock music festival.

Facing pressure from network censors, the very popular “The Smothers Brothers Comedy Hour” was cancelled by CBS in 1969. The network officially cited the show’s failure to meet contractual deadlines for submitting material, but many saw this as an excuse to getting rid of a program that was sympathetic to the counterculture and critical of politicians during the Vietnam War. 

Fast forward to today and one sees many similarities with the decade of peace and love to today. People being murdered for their political views, debate on social norms and even television programs being yanked for being too controversial.

I think the Spanish philosopher George Santayana said it best when he wrote “those who cannot remember the past are condemned to repeat it”. 

Should congress be expanded?

There is a lot of discussion these days about redistricting and creating congressional seats to help/hurt the current political parties. While the fighting continues, it is worth taking a look back at what the founding fathers thought about how representation should look like.

The First Congress of the United States proposed 12 amendments to the Constitution in 1789. Ten of those 12 amendments were ratified by three-fourths of the state legislatures on December 15, 1791. The ratified Articles (Articles 3–12) made up the first 10 amendments of the Constitution (commonly known as the U.S. Bill of Rights). In 1992, 203 years after it was proposed, Article 2 was ratified as the 27th Amendment to the Constitution and prevents any changes to the salaries of Congress members from taking effect until after the next election of representatives has occurred.

Article 1 was never ratified.

That article called “The Congressional Apportionment Amendment” was proposed by Congress and addressed the number of seats in the House of Representatives, but was never ratified by the requisite number of state legislatures. As Congress did not set a time limit for its ratification, the Congressional Apportionment Amendment is still pending before the states. As of 2025, it is one of six unratified amendments.

The amendment lays out a mathematical formula for determining the number of seats in the House of Representatives. It would initially have required one representative for every 30,000 constituents, with that number eventually climbing to one representative for every 50,000 constituents (The average number of people according to the 2020 census data per congressional district is 761,169).

In 2020, the U.S. census recorded a population of 331.4 million. If the amendment were ratified today, it would result in a House of Representatives with at least 1,700 members (under the terms of the final version of the amendment adopted by Congress).

Because the House wanted a manageable number of members, Congress twice set the size of the House at 435 voting members. President William H. Taft signed legislation increasing the membership of the House from 391 to 433 in 1911 (two more members were added when New Mexico and Arizona became states).

Currently seven states (Alaska, Wyoming, Montana, North Dakota, South Dakota, Vermont, and Delaware) have a single Representative. Were this amendment pass, these states would certainly gain greater representation.

Many will say by expanding the House, representatives would be closer to their constituents and more in tune with their needs. This could increase trust and political engagement among the public. It would also result in an increase to the size of the Electoral College. This could help reduce the disproportionate voting power of smaller states and prevent a candidate from winning the presidency without winning the popular vote.

One of the questions raised is “could this plan help/hinder either party”? The Case for Enlarging the House of Representatives study ran 10,000 simulations of the 2020 election at various House sizes. Neither party gained more than a 3 percent advantage in their odds of controlling the chamber and many House sizes saw no change at all.

The downside to expanding the House would be that a larger and more diverse legislative body could make it more difficult to achieve consensus and pass legislation. When more parties or factions are introduced, collective action problems and coordination problems may increase. It would also lead to higher costs to cover the expense of expansion.

Others will argue Congress has more responsibilities than ever before, leading to some representatives becoming overburdened and overscheduled. Many Americans including veterans and small business owners and employees require regular assistance from congressional offices, which can be inundated with requests from massive constituencies and thus not able to serve them in timely manner.

To amend the U.S. Constitution, ratification is required by three-fourths of the states, which currently means 38 out of 50 states must approve it. This approval can be given either by the legislatures of three-fourths of the states or by ratifying conventions in three-fourths of the states, depending on the method chosen by Congress. 

I think we’re a long way off for something like this to take place, but it should certainly be in the discussion to help keep America moving forward.