Federal Communications Commission Chairman Brendan Carr gave Jimmy Kimmel’s late night television show a boost to his anemic ratings. The Chairman made a not so veiled threat to use the Commission’s licensing power to discipline media for speech that it determined “not to be in the public interest.” Carr’s statement was eventually to no avail, but Kimmel’s return after a week’s hiatus was bound to increase the number of viewers curious to see what the fuss was all about. Without Carr’s foolish faux pas it would have been a non-story and Kimmel would have remained canceled.
This situation and similar ones have illuminated free speech issues already raging in public discourse. This right, ensconced and protected by the U. S. Constitution, is widely misunderstood. What it means is, with extremely narrow exceptions, that if a person expresses an opinion or interpretation of facts, the government or any state actor may not do something unpleasant to that person. It does not apply to private persons unless they are state actors.1 There is no permitted legal sanction for so-called “hate” speech nor criticism of government, public officials, or other private persons or groups. An exception is speech “directed at inciting or producing imminent lawless action and it is likely to incite or produce such action.”2 There is also an exception for civil actions for defamation, i.e. slander and libel where a person utters or publishes false facts — not opinions — that are defamatory.
Governments may also enact reasonable time, place, and manner restrictions for expression, so long as they are not based on content. An example is requiring a permit for use of a public street. Certain acts, such as vandalism of public or private property or assault, might also be legally punished.3
The above is a brief overview of the Constitutional and legal aspects of free speech and expression. There are many yards of law library shelves (or today terabytes of electronic storage) that contain law and commentary on the subject.
Of note is the current issue of private “self censorship” enforced by social disapproval of an individual’s peer group, or by economic boycotts, formal or otherwise, of business activities. That might be worth another post.
Of interest is Tunku Varadarajan’s summary of his interview with Harvey Silverglate, a lawyer who describes himself as a “liberal libertarian” in today’s Wall Street Journal (9/27/2025). Silverglate, along with Alan Charles Kors, a University of Pennsylvania history professor, described as a “conservative libertarian” founded in 1999 the Foundation for Individual Rights and Expression (FIRE).4 This organization is in the forefront of promoting freedom of speech. Varadarajan’s interview summary is at https://www.wsj.com/opinion/the-right-needs-to-conserve-free-speech-14291c81?st=HCcded&reflink=desktopwebshare_permalink and is well worth a read.
- Private employers are generally not state actors, and may restrict speech or expression as a condition or employment.
↩︎ - Brandenburg v. Ohio, 395 U.S. 444 (1969).
↩︎ - It’s arguable that burning a flag in a public place could be banned on safety grounds. ↩︎
- The FIRE was originally “Foundation for Individual Rights in Education.” Its original purpose was to promote free speech on campuses that were restricted by “speech code” by many colleges and universities. It recently expanded its focus. ↩︎
