Transparency for Government/Privacy for People
In All Things Considered, Brad Smith, founder of the Institute for Free Speech, discusses with the WSJ’s Kimberley Strassel thorny issues facing America today. Part II below:
At the Institute for Free Speech, Chairman Brad Smith warns people who support free speech of a bit of a trap. For example, Smith hears people say, “Well, it’s terrible that Charlie Kirk was killed, but boy, he said a lot of vile and disgusting things, and he has a right to say them.”
What Charlie Kirk said was an objective fact: that he said these things and that they were objectively vile and disgusting in some way to 99% of the people. Too often, those who support free speech might respond, “Listen, well, you know, that’s right, but (Kirk) has a right to say these things.”
Well, if the only purpose of the 1st Amendment is to protect bad and vile speech, eventually people will conclude, “I’m not sure we need this 1st Amendment.”
Smith also thinks a lot of us forget that the 1st Amendment really protects good speech. When the government goes after people, they’re usually going after good speech. They’re going after people who are justifiably critical of the government, or they are trying to stop perfectly great ideas.
In the past, people might have asked about gravity and science. Today, they want answers to, “was it a lab leak that led to COVID or was it something else?” These are the kinds of subjects we should be hearing and talking about 24/7. Basically, the 1st Amendment does protect some speech, whether we like it or not. The 1st also protects our ability to engage in speech that we do like; that we do want to hear. The 1st Amendment protects what we want in a good, properly running democracy.
Strassel asks Smith, would he put into that category, “comments of substance and policy debate rather than pejoratives against people you don’t like?. There’s a “big difference between those things,” notes Strassel.
Kim Strassel to Brad Smith: AG Pam Bondi seemed to threaten and potentially prosecute companies that won’t engage in certain speech, which came about obviously because of this story of an employee who was not willing to print a poster for a Charlie Kirk vigil. Was that a prosecutable offense?
Brad Smith adds a caveat: It’s “another area that demands perspective.” Cancel culture has been going on for a long time. It, too, needs perspective. Just to be clear, reiterates Smith, “The left (now complaining about this) has certainly changed its views.”
Kimberley Strassel:
That’s the same party, several years ago, that wanted a government disinformation board to run a commentary on social media. … “Hillary Clinton come out and her response to the Jimmy Kimmel episode was to say, ‘Well, comedians have been mean to me, too, but I would never dream of having government shut them down’.”
… this is the same Hillary Clinton that at one point urged Congress to pass a constitutional amendment to crack down on speech because she was mad about a movie that (mocked) her. And Democrats also, we should note. They’ve been working to expand the powers of the FCC to be able to police the speech, not just of that on broadcast, but on conservative cable outlets, too.
Nonetheless, Smith wants to talk about the legal aspects of this from a broad perspective. Is it not fair to say that this FCC move here, with regards to Kimmel, was like the right doing the same thing? Is the government attempting to use its muscle to stop a certain speech?
Defending Branden Carr, Smith notes that this is not a typical comment from Carr. What makes this more interesting is that there was a good chance Kimmel would have been canned anyway.
Kimmel’s job is to build a big audience, not just for his own show, but for other shows, for the network generally, to make people want to tune into that network. And his comments were both objectively false and they were very mean-spirited, and they came right at a time when you’re going to have a lot of people who are more so than usual and say, “I’ve had it with ABC, I’m not going to watch them anymore.” They’re more damaging than they might’ve been if he’d made similar comments just at a point where a prominent conservative leader hadn’t just been assassinated in cold blood in the middle of the day.
So I don’t think it would’ve been incorrect for ABC to fire him simply over those comments. I’m not saying they necessarily should have. I think that’s … their call. But I don’t think it would’ve been an inappropriate decision for them to do so. I thought his comments were appalling. But legally it creates some other issues.
Strassel is all ears.
“… this is something that the right has been fighting about, the meaning in particular of some of these Supreme Court precedents, most recently the Murthy versus Missouri decision that came out just last year, and of course that was … much in the context of the Biden administration pressuring social media companies during COVID over their comments, and in the end, essentially, those who brought the case were found to not have standing to have brought the suit.”
Strassel requests more background. The right has been fighting some of the FCC precedents for decades, especially the Murthy versus Missouri decision that came out just last year. That decision was much in the context of the Biden administration pressuring social media companies during COVID over their comments. In the end, essentially, those who brought the case were found to not have standing to have brought the suit.
Strassel asks Smith his opinion on “that opinion and a few in the past that makes it harder for anyone to go after government pressure like that was just exhibited against ABC and Kimmel, because it sort of insulates government a little bit from that?
Smith thinks the Murthy v Missouri is a bad and dangerous decision.
The district court compiled the records, about a hundred pages of example after example of the Biden administration pressuring online companies to take down posts, to censor users, ban users from their platform, threatening them in vague general terms, indicating that there’ll be dire consequences if you don’t take care of this guy.
… it wasn’t just on things like COVID vaccinations, the origins of COVID. It was on criticism of the economy, it was on jokes, people telling jokes about Jill Biden that they were like, “You have to take that down. Nobody makes fun of Biden.”
Smith thinks that is problematic.
The ruling of the court was that the plaintiffs lacked standing because they couldn’t show that their allegations did not specifically link “one of these kinds of threats by government to actual adverse action taken against the plaintiff.” Furthermore, you couldn’t be certain that they could redress it. “If they shoot an injunction against the government, the social media companies might continue to censor those people or knock them off the airwaves anyway.”
At the time, Jack Dorsey ran Twitter. The government, continues Smith, “really didn’t have any effect on these people. I think that the Kimmel case points to the difficulty of that.”
… Chairman Carr actually said, “We can do this the hard way or we could do this the easy way,” and talked about potentially yanking licenses. But think about this. What happened next was two of the companies that own a … number of ABC affiliates, Sinclair Broadcasting and Nexstar, both said, “We’re going to preempt J. Kimmel.”
Now, Sinclair Broadcasting has a long history of conservative management, goes way back. Nexstar’s run by a guy named Perry Sook, who’s been a major donor to the Republican Party generally, and Kimmel’s ratings were down about 40% over the last decade. They’re down about 10% from the beginning of the year.
Based on what came out when Stephen Colbert’s show was canceled, it seems to me there’s a … good chance that Kimmel was losing money, his show was losing money for the network, although I don’t know that to be true, but certainly that’s a possibility.
In other words, it’s quite likely that they would’ve said, “Yeah, we’re going to cancel this guy anyway,” for those reasons and the reasons I just suggested, that his job is to build a big audience and not say things that are too offensive to people at some point. Once Carr chimes in, of course, that changes.
Sinclair and Nexstar … had great reasons to preempt the show, and once they did that, then clearly ABC is going to pull. They can’t be airing a show that half their affiliates refuse to put on the air.
One Way or the Other
That’s why Smith thinks Murthy is a bad decision. The left is now saying that what happened to Jimmy Kimmel is terrible. It’s unconstitutional and must be stopped.
But oh yeah, (the left) want to keep Murthy in reserve so “when AOC or someone is president, we’ll be able to whip that back out again and make sure no conservative has a complaint when we pressure the government.”
Either Murthy’s a bad decision and some of these liberal commentators need to agree it’s a bad decision, or Murthy’s a good decision, in which case, who cares what Brendan Carr said?
Personally, I’m for the Murthy is a bad decision, but I totally agree with those who say, “We’re just not going to roll over and play dead and let you, … keep Murthy there so that you can use it in some future Democratic administration as your justification for threatening in general terms corporations to take action to limit speech.”
Kim Strassel brings up Justice Samuel Alito, who issued a dissent in which he pointed out some of the problems here. KS also wonders if there’s a chance that we get another case that comes along that maybe cleans that up or makes it better?
Debates over the First Amendment tend to shift and change over time depending on what’s getting a lot of attention, concludes Kim Strassel.
We’ve had periods where we focused on wartime censorship or student speech or symbolic expression like the flag. You and I have lived, … through that huge focus on campaign finance speech, which is still there, but has died down a bit. Tell us something that you think is good news that’s happened on the free speech front, if there is any. … what area do you think is coming next that’s going to get a lot of attention?
Brad Smith:
There is a growing recognition that free speech does not include any old thing you want to do to protest. You can’t lay down in the middle of a highway and say, “That’s my free speech.” It’s not. You’re obstructing traffic … You can’t throw things at priceless paintings trying to destroy them or glue yourself to a priceless painting. In other words, there’s a difference between speech and action.
This effort to dox people or to find out who’s behind something and then make their lives miserable. And we (Institute for Free Speech) have argued repeatedly that it’s generally none of the government’s business what your politics are, what groups you belong to, and what you do.
Kimberley Strassel:
We get to know what our government is doing. Not everybody gets to know what all of us are doing all the time. So there seems to be a distinction there.
Brad Smith:
That’s very right. We like to say transparency is for government, privacy is for people.
