Free Speech, Jimmy Kimmel, and Dissent

Modern expansive protections of free speech and dissent haven't always been part of America. This victory, carved in living memory, now is coming apart.

Last week, Disney’s ABC indefinitely suspended Jimmy Kimmel’s late-night show. Kimmel made a politically charged, unfounded claim suggesting without evidence that Tyler Robinson, the man accused of assassinating Charlie Kirk, was a MAGA supporter. The statement was false, tasteless, insensitive, and unwise; it made light of murder. Kimmel still shouldn’t have lost his show for saying it. Cancelling Kimmel was yet another escalation in the dangerous tit-for-tat political warfare chipping away at our democracy.

I just wrote an essay saying our growing indulgence of political violence was dangerous. Kimmel’s statement contributed to exactly what I warned about. While not exactly cheering for Kirk’s death, Kimmel’s statement appeared to minimize its gravity. What’s more, why is a mainstream late-night entertainer acting like a partisan cable host at all? We’ve become far too accepting of the creeping politicization of everything around Teams Red and Blue.

There absolutely should be social censure against Kimmel, but to indefinitely pull him off the air for this infraction was dangerous and foolish. It would be bad enough if Disney had pulled Kimmel’s show due to intense public backlash and a cancellation campaign, but what actually happened is FCC Chairman Brendan Carr urged local broadcasters to stop airing Kimmel’s show, suggesting broadcasters might lose their licenses if they didn’t. "This is a very, very serious issue right now for Disney,” he said. “We can do this the easy way or the hard way." Local broadcaster Nexstar said it would stop airing Kimmel’s show in response, while Sinclair Broadcast Group asked for an apology. Government pressure to silence dissent clearly motivated the decision.

These sorts of once-unthinkable events are no longer unusual in America. Kimmel’s suspension was just another move in an ongoing game of political silencing and retaliation. A worrisome consensus is growing across the political divide that those with power should decide the truth, silence claims they consider false, and punish through censorship or cancellation anyone who does not comply. What Carr did here echoes the Biden administration’s campaigns against content it labeled “misinformation,” urging broadcasters and social media platforms to remove politically inconvenient claims it didn’t believe were true.

It will just keep getting worse, until we act to make it stop.

A Fragile, Recent Inheritance

To appreciate why our national backtracking on political dissent is dangerous, you must understand that the robust speech protections we now take for granted are not America’s default. They’re a historic victory carved out in living memory. We’ve always had our First Amendment, and our politics has always been a boisterous affair of competing claims, but for most of American history, if you sought to truly threaten power, the rules on paper suddenly weren’t so broadly interpreted or vigorously enforced. Americans were free to speak, write, and participate in politics, but only so long as they didn’t cross red lines or threaten real power. America behaved not so differently than modern Western democracies like the UK and Germany do , in which police regularly visit people’s homes for posting things on social media that their governments dislike.

During the First World War, the American government criminalized interfering with military recruitment, attempting to cause insubordination in the armed forces, or “disloyal, profane, scurrilous, or abusive language” directed at the government. Under these laws, it prosecuted antiwar activists, labor organizations, and pacifist religious groups who spoke out against the war. Authorities broke up public rallies and meetings, and the Post Office denied mailing privileges to newspapers, magazines, and publications. When Socialist Party presidential candidate Eugene Debs condemned the war and praised draft resisters in a speech, the Wilson administration sent him to prison for ten years and the Supreme Court unanimously affirmed it.

The Palmer Raids of the early 1920s swept up thousands of labor activists in warrantless dragnets to break up their political organizations, and the immigrants found among them were deported swiftly. During the 1930s, authorities suppressed socialist and communist organizing and purged “subversive” materials from libraries and schools. The 1950s brought us loyalty oaths for public officials, Smith Act prosecutions for teaching Marxist theory, the destruction of celebrities in Hollywood blacklists, HUAC harassment, and the hearings of Joe McCarthy.

In the 1960s, the FBI’s notorious COINTELPRO suppressed lawful activist and civil rights movements through infiltration, disruption, and discrediting through false flags and dirty tricks. The Bureau spied extensively on Martin Luther King, and famously threatened to expose his dirty laundry if he didn’t commit suicide first. Presidents Kennedy and Nixon both weaponized the IRS, with Kennedy’s Ideological Organizations Project targeting conservative critics while Nixon’s Special Services Staff was built to audit, investigate, and harass an “enemies list” including figures like Jane Fonda and Senator Ted Kennedy.

When Daniel Ellsberg leaked the contents of a Defense Department report demonstrating the government lied to the public about the Vietnam War in the 1970s, the government ordered The New York Times not to publish it under the Espionage Act. Ellsberg was prosecuted for a dozen felonies, until it came out at trial that the FBI had secretly wiretapped him without a warrant, the administration improperly offered the presiding judge the FBI’s directorship, and the government sent operatives to illegally break into Ellsberg’s psychiatrist’s office to dig up dirt. The scandal forced it to drop the prosecution. Then came Watergate, in which a president sent operatives to break into Democratic National Committee offices to plant listening devices and photocopy documents.

Government regularly worked to control narratives through mass media by leaning on the small circle that controlled the nation’s newspapers, radio stations, and three national networks. When persuasion failed, they often threatened to revoke broadcast licenses, a tactic that also reached print because newspapers often owned radio stations as well. FDR pressured Colonel McCormick’s Chicago Tribune this way, Robert Kennedy used it to lean on conservative broadcasters, and Nixon used it to menace the Washington Post during Watergate

Kimmel’s current predicament, in fact, has uncomfortable parallels with the Roosevelt’s administration’s campaign to yank the radio priest, Father Charles Coughlin, from the air to rid itself of his criticism. Coughlin was a Catholic priest with a Sunday radio show in the 1930s that attracted tens of millions of listeners, making him the most popular radio personality in America. The popular myth is the government pushed Coughlin off the air because he was a fascist, but Coughlin was a creature of the left promoting a left-wing social justice agenda whose primary rhetorical target was capitalism. His National Union for Social Justice championed a left-populist social-justice agenda to address the Great Depression with stronger labor rights and a living wage for workers, national old-age pensions, nationalization of key industries to prevent monopolies, more control of banks, and protections against union busting—while also trafficking in antisemitism blaming Jewish influence.

Coughlin was originally a strong and welcome Roosevelt ally, but over time came to believe the government was beholden to capital and the rich, and was not doing enough to help working people weather the crisis. The administration got worried about challenges from its left flank from left-populists like Senator Huey Long, and decided it needed Coughlin off the air. To silence him, the administration signaled license trouble for stations carrying his show, spurred the National Association of Broadcasters to restrict “controversial” airtime like Coughlin’s, had the Post Office revoke his mailing permit, and pressed the Catholic hierarchy to intervene. By the early 1940s, the most popular program in America was gone.

What happened to Kimmel isn’t alarming because it’s unusual, but because it represents a backtracking toward a norm we fought a great cultural victory to end.

The Free Speech Revolution of the 1970s

Our modern expansive protections of free speech and dissent were not, as many Americans appear to believe, enshrined in American culture since the Founding. Indeed, under John Adams Congress passed an Alien and Sedition Act criminalizing the writing, printing, uttering, or publishing of any scandalous or malicious writing criticizing the government or president. President Lincoln oversaw the arrest and trial by military tribunal of Ohio Congressman Clement Vallandigham for giving a fiery speech during the Civil War denouncing Lincoln and the war. The military sentenced the congressman to imprisonment for the war’s duration for expressing sympathy for the enemy, and Lincoln only commuted his sentence to avoid bad optics on the condition he be deported to the South.

The free speech protections we now take for granted were a hard-won victory enacted during a unique political moment during the 1970s. In 1974, journalist Sy Hersh published a bombshell article in The New York Times revealing the CIA was conducting massive, illegal domestic spying against antiwar activists. The CIA is barred from domestic political operations. It was a final straw in a string of scandals from Watergate to the Pentagon Papers that prodded Congress to decisive action. In a convergence of disillusionment, the New Left was scarred by crackdowns on antiwar and civil rights protestors, the New Right was drifting toward libertarianism, and the establishment in the center was desperate to restore legitimacy after one after another abuse. Around the same time, a Free Speech Movement taking a maximalist interpretation of speech that began among college antiwar protestors at Berkeley was gaining steam among New Left activists and academics. The Warren and Burger Courts drew on its ideas, and was starting to constitutionalize its broader vision through decisions like New York Times v. Sullivan, Brandenburg v. Ohio, and protections for expressive conduct like flag-burning.

In this climate, Congress launched its explosive Church Committee to investigate government suppression of political dissent. What the committee revealed came as a national shock. It exposed unthinkable abuses like the existence of COINTELPRO, NSA surveillance of Americans, assassinations, IRS harassment of political enemies, and the existence of an MKULTRA program that, if it hadn’t been documented by Congress, would sound like an insane conspiracy from Stranger Things. In the wake of all this scandal, exposure, and controversy, there was now agreement across the political spectrum that significant changes must come to ensure such abuses never happened again. Everyone in America was temporarily in favor of maximally protecting dissent and speech. As part of reforms to clean up government, America established new free speech norms around the Free Speech Movement’s ideals. This is the America most of us grew up in.

Then, a generation raised amid the protections of this great victory, unfamiliar with how recent and fragile it really was, began to test its limits to achieve low-stakes short-term goals. They rationalized shortcuts like silencing “bad actors,” policing “misinformation,” and outsourcing pressure to private intermediaries believing nothing bad would happen and their opponents would never reciprocate, because free speech is enshrined in American democracy. They believed they could conduct campaigns to fire people and push them out of opportunities, and their enemies would never do the same to them. As long as government didn’t act directly, using influence and threats to get private actors to do its dirty work like government did to Father Coughlin, everything would be alright. This broke the fragile tacit agreement the previous generation sacrificed to build. Now that it’s broken, I don’t know how we get it back.

People only obey rules and norms when they believe their opponents will as well. Once that belief vanishes, so does restraint. Violations of America’s free speech norms for trivial reasons were a tragic miscalculation, one that may have broken something fragile that can never be repaired. I don’t see why the outrages won’t continue to spiral in a cycle of score-settling until America winds up back where it started, with voices silenced for things they said, police showing up at homes for posts on social media, and the open suppression of dissent.

The only solution I see is new laws. We can codify our broken norms into unambiguous laws against political firings and cancellations. As a model, use the same discrimination laws that make it illegal to fire people for protected categories like sexuality or race. It now should also be illegal to fire someone, or damage their business or livelihood, because of political affiliation or opinion, enforced by private lawsuit. If firing people, silencing them, and destroying their future opens companies and governments to lawsuits, perhaps better judgment will prevail when the next weak politician demands retaliation or mob brays for blood. It’s far from a perfect solution, since it will create expensive litigation, and because some views truly don’t belong in certain workplaces. Reasonable norms against political retaliation were always a better solution, but since that’s now off the table, codified rules we agree to obey, with hard privately-enforced sanctions for failure, are the only way to rebuild trust.

Shutting the door on overt state pressure will be harder, but we can start to protect democratic participation by ending cancellation campaigns and career-ruinous reprisals. Re-draw the bright line that civic engagement in America must never be silenced, punished, cost your livelihood, or shut you out of your rightful place as a participating citizen in our democracy.

What do you think about Kimmel’s suspension? Join the conversation in the comments.