The four years of the Biden presidency were a terrible low point for the protection of freedom of speech in the U.S. A web of government agencies and allied NGOs sprang up with remarkable rapidity to identify and ban disfavored speech, almost always of conservatives. As just a few examples: the White House itself pressured social media platforms to suppress disfavored speech on politically sensitive topics like Covid and climate change; the Cybersecurity and Infrastructure Security Agency collaborated with universities and NGOs like the Stanford Internet Observatory to get disfavored speech banned or suppressed; the Department of Homeland Security formed a Disinformation Governance Board to coerce social media companies to suppress speech deemed “disinformation”; and the FBI conducted wide-ranging investigations of Republican politicians and organizations. The entire enterprise got the accurate nickname of the Censorship Industrial Complex.
This was an extremely important issue that drove many voters to Trump. After Trump was elected, we had every reason to expect that efforts like those of the prior administration to coerce the suppression of opponents’ speech of would come to an end. And, for the most part, they have.
However, the past week has seen two bad unforced errors on the freedom of speech front by high-ranking members of the Trump administration:
Pam Bondi. Attorney General Pam Bondi appeared on a podcast with someone named Katie Miller that aired Monday, September 15. NBC News has some quotes of key statements made by Bondi:
Asked if the Justice Department would be cracking down on groups that engage in such speech, Bondi said, “We will absolutely target you, go after you, if you are targeting anyone with hate speech, anything — and that’s across the aisle.” . . . “You can’t have that hate speech in the world in which we live,” she said. "There is no place, especially now, especially after what happened to Charlie, in our society,” Bondi said, referring to Charlie Kirk, the conservative activist who was assassinated on a college campus in Utah last week.
Brendan Carr. Carr, Chair of the Federal Communications Commission, appeared on Wednesday, September 17, on a podcast with someone named Benny Johnson. Quotes of the key sections of the interview can be found at this article in Reason:
Carr warned that there are "actions we can take on licensed broadcasters" that carry Kimmel's show. He said it is "really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast [which owns NBC] and Disney, and say, 'Listen, we are going to preempt, we are not going to run, Kimmel anymore until you straighten this out, because we licensed broadcaster[s] are running the possibility of fines or license revocations from the FCC if we continue to run content that ends up being a pattern of news distortion. . . . When you see stuff like this—I mean, we can do this the easy way or the hard way," he said. "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."
Both of these statements were badly out of line as a matter of law and policy. But they were also politically damaging. Republicans in general, and Trump in particular, have fought an endless battle to preserve freedom of speech and to claim the high ground of being the protectors of free speech. They need to keep this high ground.
Take Bondi’s remarks first. So-called “hate speech” is absolutely protected by the First Amendment. The Supreme Court has been completely clear on that. The line between protected and not-protected speech is imminent incitement to violence. The Attorney General needs to know these basic principles.
The problem with the supposed “hate speech” category is that identifying it is a judgment call. The left thinks that most everything conservatives and Republicans say is “hate speech” — and if hate speech could be made illegal, and they came to power, their definitions would be enforced with arrests and prosecutions. In the UK, where “hate speech” is illegal, the police have been on a campaign of arresting dozens of people for perceived speech crimes (while completely ignoring, for example, rape gangs). In August a man was arrested for shouting “We love bacon” outside the site of a proposed mosque. Hate speech? Christians have been arrested under the same laws for praying silently.
On Tuesday, September 16, Bondi issued a post on X that appeared intended to correct or modify her statements on the Miller podcast:
Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It’s a crime. For far too long, we’ve watched the radical left normalize threats, call for assassinations, and cheer on political violence.
That’s better, but I think still not a completely correct statement of the law. Although I am not an expert on the First Amendment, I recommend the community note that X has affixed to Bondi’s tweet for what I think is a more accurate statement of the case law:
The Supreme Court ruled it legal to "justify" or celebrate violence or "advocate or teach the duty, necessity, or propriety" of it; but not "incitement" to "imminent" violence (eg telling a mob with weapons to kill someone).
Bondi’s statements on the podcast drew what many took to be a rebuke from none other than Justice Sonya Sotomayor (although Sotomayor did not call out Bondi by name), speaking on a panel at New York Law School on September 16:
“Every time I listen to a lawyer-trained representative saying we should criminalize free speech in some way, I think to myself, that law school failed.”
Can we hope that Justice Sotomayor might even stand up for free speech of someone she disagrees with in an important case? Probably not. Most recently, in the major case of Murthy v. Missouri — the 2024 case challenging massive government-coordinated speech suppression on issues of Covid lockdowns, masks and vaccines — Sotomayor joined with her liberal colleagues plus Roberts and Barrett to find that none of the plaintiffs had “standing” to complain.
Carr’s statements are exactly the sort of regulatory overreach that conservatives constantly point to as a fundamental problem with the federal bureaucracy. The FCC has the ability to approve or revoke broadcast licenses, and to approve or disapprove corporate transactions among media companies. Therefore, the Chair does not actually need to do anything more than make a veiled suggestion to get regulated entities to toe a political line. And here Carr was not just making a veiled suggestion.
Carr’s remarks drew massive criticism from Democrats in Congress and the media. Yes, these are all people who never said a word about the Biden administration’s Censorship Industrial Complex directed at Republicans. So, they are hypocrites. But Carr never should have given them this opportunity to criticize him. It is likely that Kimmel’s show was losing money, and that Disney/ABC was looking for an excuse to cancel it. But once Carr made his remarks, the firing will always look like bowing to government coercion. And maybe it was. It would have been much better if Kimmel’s firing had been done as a pure business decision, without apparent government interference.
Can we take this opportunity to ask, exactly what function does the FCC perform today? The FCC was created in 1934, in the pre-television era of a small number of radio stations. Two decades later, the FCC was regulating the shared oligopoly of three television networks. At least in that environment you could articulate a rational case for government regulation. Today, there are hundreds of channels and streaming services, distributed over the air and by cable and satellite and wifi. Most of that isn’t even regulated by the FCC. If the FCC were abolished, would anybody miss it?
