When I first started college, I, like many others my age, really enjoyed “The Daily Show with Jon Stewart.” Stewart was not only smart, but I enjoyed the satirical way he looked at politics. Yet things began to change once George W. Bush was elected.
Instead of being just lighthearted and funny, the show became a nightly browbeating of Bush. I understood that it was a political comedy show, and I have no problem with ribbing politicians, but, to me, it lost its humor when it became just about attacking the president.
I went back to watching Jay Leno, who I had always thought was funny, but it was more celebrity-driven which I have never cared for. I was excited in 2014 when Jimmy Fallon took the reins of “The Tonight Show” after Conan O’Brien’s brief attempt. I found Fallon funny. By then, I was not staying up as late, and so I recorded his shows and would watch the first 20 minutes or so the next morning while getting ready.
I enjoyed Fallon’s opening monologue and whatever quirky skit he did before interviewing his guests. However, starting in 2016 with the election of Donald Trump, I began to grow tired of Fallon’s act as well. Again, I am not against ribbing any politicians, but he went from lighthearted jokes to just complaining every night about Trump.
If I wanted politics, there were plenty of programs I could watch. But at that time at night, I wanted something funny, something to laugh at before bed. I wanted to hear thank-you notes and watch Fallon perform songs with The Roots on kids’ musical toys. When the monologue became all about Trump, it grew tiresome I finally stopped watching. Actually, I stopped watching late night talk shows altogether. Now, it seems like I am not alone. Gone are the entertaining days of Johnny Carson as they are now replaced by biased political lectures.
It seems as if I am not alone. Earlier this year, Stephen Colbert was the first to get the axe as his show will be canceled for “financial reasons.” Even though he leads his time slot, his numbers have fallen in the past 10 years.
Then last week Jimmy Kimmel, host of “Jimmy Kimmel Live!,” was suspended for on-air comments he made regarding issues surrounding Charlie Kirk’s assassination. “We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them, and doing everything they can to score political points from it,’” Kimmel said.
If Disney/ABC suspended Kimmel for not being funny, then that is just a smart business move. But if they took him off the air out of fear of retribution from the FCC, that is an injustice.
But Kimmel is not the only one being “canceled” in the wake of the Kirk assassination. Dozens have found themselves suddenly unemployed for posting vile celebrations of Kirk’s death —including several public school and college employees. While I struggle with how hateful people can be, it is ironic that people have been fired for speaking out about Kirk, a man who championed free speech.
Kirk’s assassination and its aftermath have led to questions about what exactly free speech is and who is protected.
Our Constitution states, “Congress shall make no law abridging the freedom of speech,” but what that means today is confusing. To start this conversation, it is important to understand that our Founders did not really apply this concept the way we see it today. The Bill of Rights did not even apply to states really until the 20th century.
While today most think freedom of speech is protection from any stupid comment one might say, the original application was to keep people out of jail for speaking out against the government. That’s it. Things like libel, slander, obscenity or incitement to violence — political or otherwise — could land someone in hot water.
With the meaning of freedom of speech being so confusing, the courts have weighed in over the years to clarify.
The first thing to understand is the difference between private and public jobs.
Private employers basically are free to fire anyone for any cause — including speech. The only exception is for illegal reasons like sex, race or religion. If an employee does not represent the values of the company and speaks out, they can be terminated. So, if Disney wants to fire Kimmel for his content, they have that right. They have done it many times before with Roseanne Barr, Gina Carano and a host of on-air personalities from ESPN.
Where it gets tricky is public employees including professors and schoolteachers. Now the First Amendment applies, sometimes. There is a series of tests to determine if First Amendment rights were violated.
The first test is if the offender is speaking as a private citizen or in an official capacity. The U.S. Supreme Court ruled in Garcetti v. Ceballos (2006) that if a teacher is speaking in an official capacity, like in the classroom, then they have no First Amendment protection and can be fired. That’s where teachers telling students in class they are glad Kirk was shot crosses the line. Yet if that same teacher is speaking as a private citizen, like posting on his or her private Facebook account, then there is a chance of First Amendment protection. I say “chance” because there are still two other tests.
First, is it a matter of public concern or political issue? Saying “I hate my principal and think he is a fascist” online can get someone canned. That is a private gripe. But saying “I hate the president and think he is a fascist” online is public concern or political statement and is protected — to a degree.
Once it’s established it’s a public concern, the speech must still pass The Pickering Test that comes from Pickering v. Board of Education (1968). In Pickering, the U.S. Supreme Court said the speech must be weighed between the teacher’s right to speak on public matters against the school’s interest in maintaining efficiency and avoiding disruption.
Does the speech hurt the school’s reputation or make it difficult for the teacher to perform their duties, like loss of confidence from students? A good example of this is the firing of Laura Sosh-Lightsy, Assistant Dean of Students at Middle Tennessee State University. While she posted she had “ZERO sympathy” for Kirk’s death on her private Facebook page — and it was definitely a public matter — the university can argue she damaged the reputation and credibility of the school and made it hard for her perform her duties working with students. If true, then her firing is legal.
Back to Kimmel. Again, as a private company, Disney can remove him for any reason. They should start with his lack of humor. However, if there was pressure from Brendan Carr, chair of the FCC, to remove him, that is a different story. Carr is a Trump appointment. So, if Disney later decides to fire Kimmel because he is a despicable human who no longer represents their interests, it’s perfectly legal. However, if they let him go because a Trump appointee threatened regulatory consequences, then this attacks the very heart of freedom of speech: protection from the government.
So, while I personally cannot stand Kimmel, I will support his right to freedom of speech no matter how offensive I find it and believe he should keep his job.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com. Columns are courtesy of the Southwest Ledger.