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Freedom of Speech

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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.

Putting the “me” in entitlements

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Republicans were “entitled to five more seats” in Texas said President Donald Trump when responding to a question about the redistricting efforts taking place in the Lone
Star State.

 “We have an opportunity in Texas to pick up five seats. We have a really good governor, and we have good people in Texas. And I won Texas,” Trump told CNBC’s Squawk Box. “I got the highest vote in the history of Texas, as you probably know, and we are entitled to five more seats.”

While not surprising, the word “entitled” raised a few eyebrows.

Merriam-Webster defines entitlement as “belief that one is deserving of or entitled to certain privileges” (interesting they use the actual word in the definition). Dictionary.com takes it one step further saying it is “the unjustified assumption that one has a right to certain advantages, preferential treatment, etc.”.

Republicans have long been known for opposing entitlements to those groups of people who they feel don’t deserve them. Recently, Elon Musk trumpeted the need to make cuts in federal entitlement programs including Medicare and Social Security citing massive waste and fraud.

Of course, Texas Governor Gregg Abbott added the redistricting agenda item to the special session he called for after the horrific flooding that took place in the Texas hill country last month (along with some other items including banning THC). One wonders how the Texas legislature was able to come up with redistricting plan so fast why still wrestling with how to best protect its citizens who live along the Guadalupe River.

They did manage to hold several town meetings on the issue with no details (aka maps to show to the public) in an apparent show of transparency. Days after the meetings were concluded, low and behold, they introduced the maps that they plan to vote on (funny how that worked).

Sadly, it’s a common practice for politicians to preach, do as I say, not as I do. Perhaps they also need to post the golden rule in Austin.

We’ve come a long way (maybe)

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One hundred years ago, the trail of the century took place in a little town called Dayton, Tennessee. The Scopes Trial, also known as the “Monkey Trial,” put John Scopes, a high school teacher on trial for violating a state law prohibiting the teaching of evolution in public schools.

Well before the advent of social media, the trail went viral thanks to two very high-profile attorneys (aka: influencers); William Jennings Bryan, a prominent figure in the fundamentalist movement and a former three-time presidential candidate and Clarence Darrow, a renowned defense attorney who was supported by the ACLU.

A little know fact was that the trial was actually seen as a way for the town to make money and garner national attention (the judge quipped he might use the local football stadium for the courthouse). It attracted newspaper reporters from across the country and was the first live broadcast of a trial in American history bringing the courtroom drama into living rooms everywhere.

At the core of the case was The Butler Act, a Tennessee law which made it illegal for any publicly funded school to teach the theory of evolution, especially any theory that denied the biblical account of divine creation and suggested humans descended from a lower order of animals.

Wanting to put together a test case (a sort of mock trial to test legal strategies) the ACLU found Scopes, a young high school teacher in Dayton, who volunteered to be the defendant thus setting the stage for what would pit science vs. religion.

The case highlighted the deep community divisions between traditional religious values and modern scientific thought. It also raised significant questions about academic freedom and the right of teachers to present scientific theories in the classroom.

The actual outcome of the trial was anticlimactic. Scopes was found guilty by the jury and fined $100. The conviction was later overturned on a technicality by the Tennessee Supreme Court, which ruled that the judge, not the jury, should have imposed the fine.

Fast-forward to 2025 where the debate of religion in the classroom continues. In Texas, the discussion centers on the display of the Ten Commandments and the introduction of optional periods for prayer and Bible reading in public schools (although one has to question if it would be more beneficial to post the Ten Commandments in the offices of elected officials who seem to not remember all of them).

Supporters argue these measures uphold community values and are foundational to American law and education. Those opposed, including some faith leaders and advocacy groups like the ACLU of Texas, argue such policies infringe on religious freedom and violate the separation of church and state.

The state has also introduced the “Bluebonnet Learning” curriculum which was developed by The Texas Education Agency and includes religious references in lessons aligned with state standards (although given the actions of some elected officials, one wonders what those state standards are).

The issue of religion and education is not new, the Condemnations at the medieval University of Paris in 1201 were put in place by the Bishop of Paris to curb certain teachings as being heretical by the church, who at the time could be considered as powerful as any government (see Education under the microscope).

It’s a discussion that seems to not be going away. They say science cannot replace religion and religion cannot replace science. I guess the question is, can they co-exist.