If Trump's FCC chair hadn't said anything Kimmel still would have been pulled off the air, but we wouldn't be talking about the distraction of jawboning. Way to snatch defeat from the jaws of victory, guys.
Jack, it's a fair question and now we won't be able to know the real answer about what caused what. Kimmel (and all the late night shows) have had truly abysmal numbers for a long time. The content of the shows have been unpopular with the affiliate networks, and the viewership numbers aren't enough to drive good advertising numbers for the parent companies. So the theory is they were already looking for an excuse to get Kimmel off the air before his contracts expire.
I've heard that explained from multiple places so I'm inclined to believe there's some truth there. Here's a more full explanation: https://youtu.be/zcOuxbq5shI
But, to your point, now we're rightfully talking about jawboning instead of why Kimmel sucks because of the two, that's the dangerous one.
Nathaniel, your comment highlights a huge hole in the FIRE/ERI discussion (at least all that I've seen). I almost haven't seen anyone say that the problem with jawboning isn't necessarily the harm it caused. It's the threat it implied. As SCOTUS re-addressed recently in NRA v. Vullo:
"In Bantam Books, Inc. v. Sullivan," SCOTUS "explained that the First Amendment prohibits government officials from relying on the 'threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression' of disfavored speech." SCOTUS focused on the fact that "the coerced party 'reasonably understood' the commission to threaten adverse action" even though "the defendant in Bantam Books, a state commission that blacklisted certain publications, lacked" the “power to apply formal legal sanctions.”
"Bantam Books stands for the principle that a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on her behalf."
But I did find this:
These types of regulatory threats have a term — “jawboning” — and courts don’t like it, legal experts say. It’s when a public official uses their position to “inappropriately compel private action,” per Will Duffield of the Cato Institute. It’s also been referred to as “regulation by raised eyebrow.”
Carr said on Benny Johnson’s podcast earlier this week, "Frankly, when you see stuff like this, I mean, we can do this the easy way, or these companies can find ways to change conduct, to take action, frankly, on Kimmel, or there's going to be additional work for the FCC ahead."
Robert Corn-Revere, former chief counsel at the FCC and chief counsel of the Foundation for Individual Rights and Expression, said via email, “This is more than regulation by raised eyebrow, which sounds quaint these days. It is regulation by raised fist. Brendan Carr’s threats to ABC sound like statements by a mob boss — not those of a public official who took an oath to uphold the law and the Constitution. The sad fact is that Carr well knows he has crossed the line and is violating the law. He simply has chosen to ignore it.”
False Information: The regulation specifically targets broadcasts that knowingly present false information about crimes or disasters.
If Kimmel had couched his views within a comedy skit or monolog then he would have been on solid 1st amendment grounds. Instead, he postulate as fact an opinion on a ongoing criminal investigation. The FCC had the legal right to question that behavior under section 73.1217. The FCC didn't ask for his firing but was fulfilling it's regulatory function. Kimmel got fired not for free speech but for lousy ratings.
If you look at how many complaints were lodged with the FCC against Kimmel, you have to figure quite a few of them came from the affiliate networks, and it was only a matter of time before these two affiliates were going to preempt him and stop pissing off their audience.
I cannot believe that the affiliates responded within hours of Carr's podcast interview and made that decision. I work in corporate media, and nobody ever makes a decision and issues, a press release that quickly.
I do not support censorship for any reason, but I think it would be very helpful if these two affiliate networks stepped forward.I'm more honest about their decision. In addition, when we listen to the commissioner's interview, we need to listen to the entire interview because there's a lot more context there.
Clearly the FCC should not have become involved, Kimmel should have been fired a long time ago because he’s not funny.
Two down, one to go. Good riddance. Colbert and Kimmel along with John Oliver have become insufferable. They force you to ask do the Democrats ever do anything funny anymore because they certainly would never joke about it.
Does anyone remember when comedians were willing to make fun of the foibles of both parties? Now Colbert, Kimmel, and Oliver are so one sided they sound like scolds. Only Bill Maher, Ricky Gervais and Dave Chappelle are willing to take shots at both sides. They remain funny. The others not.
If you want to see a humorous illustration of the danger of repression of expression, see Jon Stewart's cowering conduct (right out of 1984). I thought it was well worth the time to watch the whole clip. https://www.youtube.com/watch?v=_GXNJ3V9lzg
Stewart showed some truly astonishing clips of Trump. I wasn't laughing then. I was sad--for America. When I saw Trump barely manage to read his "praise" for UK luminaries and then mutilate the names of two countries (which he apparently had "prepared" to speak about), I felt the same sadness, shame and concern (for us) as when I saw Biden during the debate.
Now is an important time to recall the timeless writing of Justice Jackson (writing for SCOTUS) in West Virginia State Board of Education v. Barnette in 1943.
“There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.”
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
The “freedoms of speech and of press” are “susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.”
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
[Clearly,] the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
As a result, it is a “fixed star in our constitutional constellation” that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
PS. Village tyrant and village Hampden seems to have been an allusion to Elegy Written in a Country Churchyard. John Hampden was a very important and very powerful proponent of the rule of law in England and opponent of the tyranny of Charles I.
If Trump's FCC chair hadn't said anything Kimmel still would have been pulled off the air, but we wouldn't be talking about the distraction of jawboning. Way to snatch defeat from the jaws of victory, guys.
Nathaniel, but both Trump and Carr actually were guilty of jawboning. So isn't all the talk about Kimmel the actual distraction?
Jack, it's a fair question and now we won't be able to know the real answer about what caused what. Kimmel (and all the late night shows) have had truly abysmal numbers for a long time. The content of the shows have been unpopular with the affiliate networks, and the viewership numbers aren't enough to drive good advertising numbers for the parent companies. So the theory is they were already looking for an excuse to get Kimmel off the air before his contracts expire.
I've heard that explained from multiple places so I'm inclined to believe there's some truth there. Here's a more full explanation: https://youtu.be/zcOuxbq5shI
But, to your point, now we're rightfully talking about jawboning instead of why Kimmel sucks because of the two, that's the dangerous one.
Nathaniel, your comment highlights a huge hole in the FIRE/ERI discussion (at least all that I've seen). I almost haven't seen anyone say that the problem with jawboning isn't necessarily the harm it caused. It's the threat it implied. As SCOTUS re-addressed recently in NRA v. Vullo:
"In Bantam Books, Inc. v. Sullivan," SCOTUS "explained that the First Amendment prohibits government officials from relying on the 'threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression' of disfavored speech." SCOTUS focused on the fact that "the coerced party 'reasonably understood' the commission to threaten adverse action" even though "the defendant in Bantam Books, a state commission that blacklisted certain publications, lacked" the “power to apply formal legal sanctions.”
"Bantam Books stands for the principle that a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on her behalf."
But I did find this:
These types of regulatory threats have a term — “jawboning” — and courts don’t like it, legal experts say. It’s when a public official uses their position to “inappropriately compel private action,” per Will Duffield of the Cato Institute. It’s also been referred to as “regulation by raised eyebrow.”
Carr said on Benny Johnson’s podcast earlier this week, "Frankly, when you see stuff like this, I mean, we can do this the easy way, or these companies can find ways to change conduct, to take action, frankly, on Kimmel, or there's going to be additional work for the FCC ahead."
Robert Corn-Revere, former chief counsel at the FCC and chief counsel of the Foundation for Individual Rights and Expression, said via email, “This is more than regulation by raised eyebrow, which sounds quaint these days. It is regulation by raised fist. Brendan Carr’s threats to ABC sound like statements by a mob boss — not those of a public official who took an oath to uphold the law and the Constitution. The sad fact is that Carr well knows he has crossed the line and is violating the law. He simply has chosen to ignore it.”
https://www.msn.com/en-us/tv/news/brendan-carrs-threats-on-networks-may-be-jawboning-and-courts-dont-like-it-legal-experts-say/ar-AA1MUZvR?ocid=BingNewsVerp
FCC Section 73.1217
False Information: The regulation specifically targets broadcasts that knowingly present false information about crimes or disasters.
If Kimmel had couched his views within a comedy skit or monolog then he would have been on solid 1st amendment grounds. Instead, he postulate as fact an opinion on a ongoing criminal investigation. The FCC had the legal right to question that behavior under section 73.1217. The FCC didn't ask for his firing but was fulfilling it's regulatory function. Kimmel got fired not for free speech but for lousy ratings.
In this case, I think FIRE's narrative is wrong.
Dick Minnis
removingthecataract.substack.com
If you look at how many complaints were lodged with the FCC against Kimmel, you have to figure quite a few of them came from the affiliate networks, and it was only a matter of time before these two affiliates were going to preempt him and stop pissing off their audience.
I cannot believe that the affiliates responded within hours of Carr's podcast interview and made that decision. I work in corporate media, and nobody ever makes a decision and issues, a press release that quickly.
I do not support censorship for any reason, but I think it would be very helpful if these two affiliate networks stepped forward.I'm more honest about their decision. In addition, when we listen to the commissioner's interview, we need to listen to the entire interview because there's a lot more context there.
Clearly the FCC should not have become involved, Kimmel should have been fired a long time ago because he’s not funny.
Two down, one to go. Good riddance. Colbert and Kimmel along with John Oliver have become insufferable. They force you to ask do the Democrats ever do anything funny anymore because they certainly would never joke about it.
Does anyone remember when comedians were willing to make fun of the foibles of both parties? Now Colbert, Kimmel, and Oliver are so one sided they sound like scolds. Only Bill Maher, Ricky Gervais and Dave Chappelle are willing to take shots at both sides. They remain funny. The others not.
If you want to see a humorous illustration of the danger of repression of expression, see Jon Stewart's cowering conduct (right out of 1984). I thought it was well worth the time to watch the whole clip. https://www.youtube.com/watch?v=_GXNJ3V9lzg
Stewart showed some truly astonishing clips of Trump. I wasn't laughing then. I was sad--for America. When I saw Trump barely manage to read his "praise" for UK luminaries and then mutilate the names of two countries (which he apparently had "prepared" to speak about), I felt the same sadness, shame and concern (for us) as when I saw Biden during the debate.
Now is an important time to recall the timeless writing of Justice Jackson (writing for SCOTUS) in West Virginia State Board of Education v. Barnette in 1943.
“There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.”
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
The “freedoms of speech and of press” are “susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.”
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
[Clearly,] the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
As a result, it is a “fixed star in our constitutional constellation” that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
PS. Village tyrant and village Hampden seems to have been an allusion to Elegy Written in a Country Churchyard. John Hampden was a very important and very powerful proponent of the rule of law in England and opponent of the tyranny of Charles I.