Episode Transcript
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Speaker 1 (00:00):
Less than a week after the show was abruptly suspended
over Kimmel's comments about the suspected assassin of conservative activists
Charlie Kirk.
Speaker 2 (00:06):
ABC, in a statement said, we have spent the last
days having thoughtful conversations with Jimmy, and after those conversations,
reached the decision to return the show today on Tuesday
and joining us on the KAA comment spirit health hotline
and leading national expert and free speech doctrine and theory,
the law of federal courts and public interest law from
the Deustroham College of Law, its professor Allan Chen, Professor,
Welcome back to Colorado's Morning News. Has been way too long.
(00:28):
I want to get your initial reaction to kim or returning.
Do you think ABC realized the optics and maybe found
out the literal cost and blowback of first suspending him.
Speaker 3 (00:38):
I think I can't speculay what was in their heads,
but it certainly it seems like the public pressure they
outcry about what Next Star and Sinclair did seems to
have worked. You know, lots of people threatening to cancel
the subscriptions to Disney and Hulu. I think they can't
have possibly ignored.
Speaker 1 (00:57):
That were Jimmy Kimmel's First Amendment right now violated or
what is really considered free speech to begin with.
Speaker 3 (01:04):
Sure, so let's start with the question of whether his
speech was protected. And it's unquestionable that I've seen the
clip many times at this point that nothing that he
said could be regulated by the government. It was protected
speech on the First Amendment. Nor did it violate any
SCC regulations that would justify the Commission to exercise any
(01:27):
of its regulatory authority over ABC. So you know, that's
basically that, So let's start with that. Then what Brendan
Carr did when he went on that podcast and said
we can do this the easy way or the hard
way was basically violating a basic Person Amendment principle against
(01:47):
what's called jaw boning. And the principle is basically this,
the government cannot strong arm private entities to do their
dirty work for them. That is, they can't pressure private
companies to censor speech and then sort of throw up
their hands and say we didn't do anything.
Speaker 2 (02:03):
FCC share Car. Are you saying that he overstepped his bounds?
Speaker 3 (02:08):
Unquestionably? Just last year, a unanimous Supreme Court held in
a case involving the NRA that government quote quote, government
officials cannot attempt as coerce private parties in order to
punish or suppress views of the government disfavors unquote. That's
from a case called National Rifle Association versus Buloh.
Speaker 1 (02:28):
So, with that being said, if ABC wanted to, could
they sue the FCC for a First Amendment rights violation?
And if so, how do you think that would pan out?
Speaker 3 (02:38):
I mean, I think they could have. I think this
was probably the simpler route to take, which is to
put him back on the air after only a couple
of days of suspension or suspending his show. It would
be you know, I think, you know, I think what
ABC has done basically said, well, now it's in the SCCS,
the balls in the SEC's court. Now if you want
to try to bring an enforcement action again us, we'll
(03:02):
we'll stand firm and to sert our First Amendment rights
and our rights as an officially licensed broadcaster.
Speaker 2 (03:08):
When I was in college, I took broadcast law one
on one and we heard over and over about community
standards in that argument. You probably know well that Sinclair Stations,
they are a conservative ownership group. They've decided not to
air Kimmel. How do they define community standards and are
they within their right to not air that program?
Speaker 3 (03:26):
I mean, it's their money, They own these stations. They
can obviously choose to apply their own standards, as long
as they're not doing that because of government pressure, but
rather are doing it on their own. There's nothing wrong
with them doing that, just like there's nothing wrong with
people who hate Jimmy Kimmel, what Jimmy Kimmel said not
watching a show.
Speaker 1 (03:46):
Professor Chen, while we have you, another topic of conversation
that's been in light is just employers and how they're
able to discipline their employees for their speech, even if
it's outside of the workplace, something posted on social media.
We saw a lot of this oneeople are making posts
pretty much celebrating the death of Charlie Kirk. Where do
we stand on that when it comes to speech?
Speaker 3 (04:06):
Yeah, so that that is actually a state law question,
and the law varies from state to state. A lot
of the several states have statutes that protect private employees
from being fired for the first speech on their private time,
even if it's you know, especially for political speech. For
(04:28):
public employers, like for example, a public school district, they
are bound by the First Amendment, and if they try
to sanction or punish their employees for engaging in protective
speech that is about a matter of public concern, and
it is also on their private time for example, you know,
on their own social media feeds, that is protected by
the First Amendment. But private employers have a little more leeway.
Speaker 2 (04:50):
Professor, Is that an example? We've heard this before. Freedom
of speech doesn't mean freedom of and from consequence. Is
that a thing? Is that the case there? Sure?
Speaker 3 (04:59):
I mean, but again, if it's one thing, if your
speech interferes with your ability to do your job, it's
another speech. Another it's another matter if you engage in
speech on your own private time. For example, suppose that
a private employee is fired by her company for writing
a letter to the editor and having that letter published.
(05:20):
That's not really unless it has to do with that
particular workplace. That's not disruptive in any way, So there's
there really shouldn't be any consequences for that.
Speaker 2 (05:30):
And final question, and not to put too fine of
a point on this, but just from your perch, do
you see it as a coincidence that next star which
showns two hundred plus local stations, many of which are
ABC affiliates. They made the initial move not to air Kimmel,
though that's changed. Were they trying to be transactional because
they're trying to close that six billion dollar deal with Tegna,
and of course that's in front of the FCC and
public licenses with those local TV stations. Do you think
(05:53):
they were capitulating in some way to get that deal done.
Speaker 3 (05:56):
I don't want to speculate about what their state of
mind was or accuse them of anything, but the you
know that, I will say that the facts seem to
be uh, you know, the facts speak for themselves. I
guess see you.
Speaker 1 (06:08):
Law professor specializing in constitutional and First Amendment law, it's
professor Ellen Chin. Thank you so much for your time
this morning.
Less than a week after the show was abruptly suspended
over Kimmel's comments about the suspected assassin of conservative activists
Charlie Kirk.
Speaker 2 (00:06):
ABC, in a statement said, we have spent the last
days having thoughtful conversations with Jimmy, and after those conversations,
reached the decision to return the show today on Tuesday
and joining us on the KAA comment spirit health hotline
and leading national expert and free speech doctrine and theory,
the law of federal courts and public interest law from
the Deustroham College of Law, its professor Allan Chen, Professor,
Welcome back to Colorado's Morning News. Has been way too long.
(00:28):
I want to get your initial reaction to kim or returning.
Do you think ABC realized the optics and maybe found
out the literal cost and blowback of first suspending him.
Speaker 3 (00:38):
I think I can't speculay what was in their heads,
but it certainly it seems like the public pressure they
outcry about what Next Star and Sinclair did seems to
have worked. You know, lots of people threatening to cancel
the subscriptions to Disney and Hulu. I think they can't
have possibly ignored.
Speaker 1 (00:57):
That were Jimmy Kimmel's First Amendment right now violated or
what is really considered free speech to begin with.
Speaker 3 (01:04):
Sure, so let's start with the question of whether his
speech was protected. And it's unquestionable that I've seen the
clip many times at this point that nothing that he
said could be regulated by the government. It was protected
speech on the First Amendment. Nor did it violate any
SCC regulations that would justify the Commission to exercise any
(01:27):
of its regulatory authority over ABC. So you know, that's
basically that, So let's start with that. Then what Brendan
Carr did when he went on that podcast and said
we can do this the easy way or the hard
way was basically violating a basic Person Amendment principle against
(01:47):
what's called jaw boning. And the principle is basically this,
the government cannot strong arm private entities to do their
dirty work for them. That is, they can't pressure private
companies to censor speech and then sort of throw up
their hands and say we didn't do anything.
Speaker 2 (02:03):
FCC share Car. Are you saying that he overstepped his bounds?
Speaker 3 (02:08):
Unquestionably? Just last year, a unanimous Supreme Court held in
a case involving the NRA that government quote quote, government
officials cannot attempt as coerce private parties in order to
punish or suppress views of the government disfavors unquote. That's
from a case called National Rifle Association versus Buloh.
Speaker 1 (02:28):
So, with that being said, if ABC wanted to, could
they sue the FCC for a First Amendment rights violation?
And if so, how do you think that would pan out?
Speaker 3 (02:38):
I mean, I think they could have. I think this
was probably the simpler route to take, which is to
put him back on the air after only a couple
of days of suspension or suspending his show. It would
be you know, I think, you know, I think what
ABC has done basically said, well, now it's in the SCCS,
the balls in the SEC's court. Now if you want
to try to bring an enforcement action again us, we'll
(03:02):
we'll stand firm and to sert our First Amendment rights
and our rights as an officially licensed broadcaster.
Speaker 2 (03:08):
When I was in college, I took broadcast law one
on one and we heard over and over about community
standards in that argument. You probably know well that Sinclair Stations,
they are a conservative ownership group. They've decided not to
air Kimmel. How do they define community standards and are
they within their right to not air that program?
Speaker 3 (03:26):
I mean, it's their money, They own these stations. They
can obviously choose to apply their own standards, as long
as they're not doing that because of government pressure, but
rather are doing it on their own. There's nothing wrong
with them doing that, just like there's nothing wrong with
people who hate Jimmy Kimmel, what Jimmy Kimmel said not
watching a show.
Speaker 1 (03:46):
Professor Chen, while we have you, another topic of conversation
that's been in light is just employers and how they're
able to discipline their employees for their speech, even if
it's outside of the workplace, something posted on social media.
We saw a lot of this oneeople are making posts
pretty much celebrating the death of Charlie Kirk. Where do
we stand on that when it comes to speech?
Speaker 3 (04:06):
Yeah, so that that is actually a state law question,
and the law varies from state to state. A lot
of the several states have statutes that protect private employees
from being fired for the first speech on their private time,
even if it's you know, especially for political speech. For
(04:28):
public employers, like for example, a public school district, they
are bound by the First Amendment, and if they try
to sanction or punish their employees for engaging in protective
speech that is about a matter of public concern, and
it is also on their private time for example, you know,
on their own social media feeds, that is protected by
the First Amendment. But private employers have a little more leeway.
Speaker 2 (04:50):
Professor, Is that an example? We've heard this before. Freedom
of speech doesn't mean freedom of and from consequence. Is
that a thing? Is that the case there? Sure?
Speaker 3 (04:59):
I mean, but again, if it's one thing, if your
speech interferes with your ability to do your job, it's
another speech. Another it's another matter if you engage in
speech on your own private time. For example, suppose that
a private employee is fired by her company for writing
a letter to the editor and having that letter published.
(05:20):
That's not really unless it has to do with that
particular workplace. That's not disruptive in any way, So there's
there really shouldn't be any consequences for that.
Speaker 2 (05:30):
And final question, and not to put too fine of
a point on this, but just from your perch, do
you see it as a coincidence that next star which
showns two hundred plus local stations, many of which are
ABC affiliates. They made the initial move not to air Kimmel,
though that's changed. Were they trying to be transactional because
they're trying to close that six billion dollar deal with Tegna,
and of course that's in front of the FCC and
public licenses with those local TV stations. Do you think
(05:53):
they were capitulating in some way to get that deal done.
Speaker 3 (05:56):
I don't want to speculate about what their state of
mind was or accuse them of anything, but the you
know that, I will say that the facts seem to
be uh, you know, the facts speak for themselves. I
guess see you.
Speaker 1 (06:08):
Law professor specializing in constitutional and First Amendment law, it's
professor Ellen Chin. Thank you so much for your time
this morning.
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