The Fight Over Free Speech

Archon Fung: Hey, everyone. Welcome to Terms of Engagement, episode eleven already. My name is Archon Fong. I’m a professor at the Harvard Kennedy School and director of the Ash Center here for Democratic Governance and Innovation.

Stephen Richer: And my name is Stephen Richer. I’m the former elected Maricopa County Recorder, and I’m now a senior practice fellow at the Ash Center and at the Harvard Kennedy School.

Archon Fung: As always, our views, what we say here is our individual views and not at all reflective necessarily of Harvard or the Ash Center.

Stephen Richer: And I’m monitoring the questions today, so please feel free to put your questions into the chat. I’ll be looking at those. It’s just the two of us today, so we do want to interact. They should end in a question mark, however, and they should be pertinent to the conversation we’re having today, which is, of course, about free speech in the wake of the assassination of Charlie Kirk. I think the most prominent example of this, or the thing that has really teed off a lot of conversations throughout the United States, was ABC/Disney’s decision to suspend Jimmy Kimmel’s late-night show, late-night comedy show, as a result of some of the things that he said about the Kirk shooting. We should note, however, that that’s a bit of a state in flux because. Disney, ABC announced just earlier yesterday, earlier this week, that they would be re-upping the Kimmel show in some jurisdictions, but not all jurisdictions, depending on who broadcast it.

Archon Fung: I think it’s up to the individual affiliates to decide whether or not to carry the show. And as of the latest reporting that I’ve seen, Sinclair Networks and Nexstar have decided not to carry the Jimmy Kimmel show tonight. And instead, Sinclair is going to offer news programming instead of Jimmy Kimmel.

Stephen Richer: So Kimmel might be on tonight, depending on where you are. Yeah. So Google that like all things in life. But it’s been really amazing that this has, I think, sparked a conversation at a broader level outside of the political science departments of universities and outside of the democracy community about is this suppression of free speech? Is this an indicator of an authoritarian moment? How much is the government really putting its finger on it? versus how much of this is just like what many private businesses have done in the past, which is when an employee says something that doesn’t reflect properly on the company, they remove that employee. And does sort of comedy have any special circumstances, and should it be treated differently and so on and so forth. But I think we’re going to start by showing the clip. And so showing just a little bit of the Kimmel clip in question that started much of this conversation.

Jimmy Kimmel: We had 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. In between the finger pointing, there was grieving. On Friday, the White House flew the flags at half-staff, which got some criticism. But on a human level, you can see how hard the president is taking this.

Reporter: My condolences on the loss of your friend, Charlie Kirk. May I ask, sir, personally, how are you holding up over the last day and a half, sir?

President Trump: I think very good. And by the way, right there, you see all the trucks? They’ve just started construction of the new ballroom for the White House, which is something they’ve been trying to get, as you know, for about a hundred and fifty years. And it’s going to be a beauty.

Jimmy Kimmel: Yes. He’s at the fourth stage of grief. Construction. Demolition. Construction. This is not how an adult grieves the murder of someone he called a friend. This is how a four-year-old mourns a goldfish, okay?

Stephen Richer: So there we have it. That’s really what prompted the conversation. And to some people, that might say, hey, we just had an incredibly grotesque, horrific moment that led to one hundred thousand people attending the funeral over this past weekend in the Phoenix, Arizona area. But on the other hand, it does seem sort of weird and maybe the subject of comedy for the president to say, this is one of the worst moments. Meanwhile, have you seen the new ballroom attached to the West Wing? So you can get where he’s going there. Right.

Archon Fung: And so. I think it’ll be good to open a little. One of the themes I’m interested in exploring is why do we care about free speech in the first place in relationship to democracy? Like what is the link between the two? And a lot of people might say, oh, it’s obvious. Of course we should be for free speech. But then you look at the Jimmy Kimmel clip and you say, well, Is that a contribution to democratic governance and successful democratic governance? I don’t get it. Why not say, okay, I like free speech generally, but what Jimmy Kimmel said is not helpful. So he shouldn’t be allowed to do that. Right. And so if you’re a defender of free speech, which both of us, I think are pretty much on the strong free speech kind of side of things, like what’s our answer to that? Right. And so a little bit, maybe a little bit more of political philosophy that’s in some of our discussions. But I think that there are one thing I’d like to explore is like different reasons to be for freedom of expression. And so one reason is a libertarian or liberty reason is like things are important to me. I want to be able to express them. I don’t want the government coming down on me. So this is one of my reasons.

Stephen Richer: It’s just you have an inherent dignity as an individual and an inherent ability to say what is on your mind. libertarians would draw the line at certain tortious actions where if you say things that are false about another person and that damages the other person then maybe that’s where it would abut against but otherwise libertarians have a very permissive view of what should be the free speech

Archon Fung: And so do you think that most libertarians would have said it’s wrong for ABC to suspend Jimmy Kimmel because he’s expressing himself as an individual?

Stephen Richer: So I think, well, I don’t have to speculate on this because Cato Institute, which is one of the better known libertarian outfits and an outfit that I’m affiliated with. threw a fit over the weekend, but it was directed at the FCC’s comments. Yes, it was not directed. They weren’t saying that ABC shouldn’t have a right to terminate an employee. Now, they might think it’s a bad policy. They might think that comedy only flourishes, society only flourishes when that’s allowed. But as a matter of law, they would certainly defend ABC’s right to terminate him. Unless, of course, it was opposed by the FCC. But I don’t want to derail this too much. Other ideas for why just free speech, qua free speech, is of value.

Archon Fung: Right. And so the liberty reason is super important and the libertarian reason. My main reason is different. It’s a democracy reason. And so I’m going to, Sarah, if you could show the slide. There’s a lot of words on this. This is Oliver Wendell Holmes, justices of the Supreme Court in. He’s dissenting in a case in which several anti-war activists are prosecuted for distributing anti-war leaflets. And this is World War I. And the Supreme Court says, yeah, they violated the Sedition Act. And Oliver Wendell Holmes here is in the dissent is saying, no, no, I think that’s a bad decision because I think the First Amendment is more important than the Sedition Act. And this is important here. So I’m going to read the whole quote because I want you to pay attention to it. So Justice Holmes writes, if you have no doubt of your premises or power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think that speech is impotent. as when a man says he is square to circle or that you do not care wholeheartedly for the result or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe in the very foundations of their own conduct, that the ultimate good desired is better reached by a free trade in ideas, that the best test of truth is the power to get that thought accepted in the competition of the market, that the truth is the only ground upon which their wishes can be safely carried out. That, at any rate, is the theory of the Constitution, It is an experiment as all life is an experiment. Now, I think that the very first part explains to me the kind of conundrum that we’re in about free speech. If you have no doubt of your premises or power, that is, if you’re really sure of what you believe, then there’s no reason really to support free speech on the democracy reason. The only reason to support free speech for a democracy reason out of democratic commitment is you think you might be wrong and you think the crowd might be wrong. And so you’ve got to talk it out and learn about where you’re wrong. But I think in this current context of political polarization, both the MAGA right and big parts of the left are very, very sure of what they believe. They have no doubt of their premises. And so why is free speech important if you don’t doubt yourself? Right. So that’s a different reason than the human dignity liberty reason.

Stephen Richer: So I’m normally opposed to reading large paragraphs from nineteen nineteen as a matter, of course. But I do think that gets to two of the most oft-cited principles in support of free speech. And of course, Holmes was famous for the latter, especially which was the free marketplace of ideas that by having competing ideas, we will arrive at the truth. We will arrive at good public policy, whatever it is. But the first one is less discussed, which is that free speech is the ultimate check on authority and it’s the ultimate sort of like sowing the seed of doubt in maybe the authority’s mind.

Archon Fung: Right, and it’s deeper than that. It’s that if you, one reason for you to support free speech which I definitely do for this reason, is that deep down you think you might be wrong, right? And so if you have no inkling that you could be wrong, if you think the other side is evil, then you don’t really have a reason to support free speech in the political sense, which is like a deep problem. It’s like, I see one thing that we’re saying in the show prep is I think it’s easy to be for free speech when people agree with you and you see people getting off the free speech train when they hear people starting not to agree with them.

Stephen Richer: Well, so let’s take it in that direction. And in one of the comments from Sean, you know, to the, the, As soon as this happened, as soon as it became apparent that Kimmel was going to get pulled, and then it became apparent that the FCC car, the FCC director car had made some comments about Kimmel’s show, I would say many people shouted out in outrage, especially on the political left, especially Hollywood adjacent. I mean, I’m somebody who was a little bit sort of, where have you been in the past? Yeah, yeah, yeah, yeah. Is that all this is? It’s just like that they don’t agree with this or they don’t agree with the current administration and therefore they need free speech and therefore the people in power should have that level of doubt that they might not have that probably a lot of men don’t have because of our bold confidence or something like that. So is the left being hypocrites here?

Archon Fung: I think a lot of people are hypocritical on the left and the right. But they don’t really… mean it. So on the hypocrisy point, a third reason to be for free speech is the one that Steve Bannon gives. And so in the wake of the Charlie Kirk and the government reaction and Jay Vance’s statements about foundations, I think this was before Jimmy Kimmel’s kind of suspension, but it might have been after. Somebody asked a New York Times reporter, asked Steve Bannon, well, you know, you’ve been a real staunch defender of freedom of speech for the MAGA, right? Because you feel like Hollywood and news has been and social media and the Biden administration has been crushing their speech. What about now? And then Bannon says, well, you know, I think we’ve reached an inflection point. And what’s really important to me is winning. Right. So if the underlying principle, which I think a lot of people have actually on both the left and the right, is winning and free speech is a tactical move when you feel like other people are suppressing your speech. But when you’re in a position to suppress other people’s speech, it’s not a problem. He’s really consistent in that his underlying principle is I want to win. So most people would say that’s a lack of principle, lack of political or lack of philosophical principle.

Stephen Richer: Yeah. And very few people are as open as Bannon about just winning and authority and power is the ultimate goal. Yeah, yeah, yeah. For most people, whether they really are or whether they just like to say they are, they say that they hold some sort of principles, one of which that is often cited is free speech. And so for those people who want to cling to that, is the FCC making comments about Kimmel any different than when the Biden administration would write to social media companies and say, Hey, what this person posted is flagrantly wrong or is inaccurate regarding COVID or is inaccurate regarding the twenty twenty election administration. Is that is that the same? And should members of the political left have been outraged at that time?

Archon Fung: I think, yeah, I was outraged at that time.

Stephen Richer: You were outraged with knowing about the Biden administration’s communications with social media companies.

Archon Fung: Yeah, I mean, around COVID especially. I mean, I thought the idea that we couldn’t talk about a lab leak was ridiculous. I thought that… I don’t think this is before the Biden kind of jawboning exercise, but when the CDC and the WHO said, you know, don’t wear masks, I thought that was kind of crazy because half of the other scientists in other parts of the world, you know, there’s not a scientific consensus there. And to say… We know what the truth is. So my bottom line on this is like everybody should be trying to get to the truth, but everybody should also realize that the truth is like really, really hard to get to. And so when a government regulator, whether it’s the FCC or somebody in the Biden administration, comes in jawbones for the sake of imposing the truth, I get really nervous.

Stephen Richer: So is that the test? Is it for the sake of imposing the truth? What role does government have here? Because I think you would say maybe. We would all agree that if the Trump administration had just arrested Kimmel, I think everyone would be like, that seems like a violation of free speech. They didn’t. The closest thing they came to was Carr saying, we’re going to review your license. We’re going to review some of the stuff pertaining to maybe future mergers or anything like that. But what about if, like, does the government have a role to even just say it’s wrong? Because if the government is speaking, then it speaks with a position of authority. And you could say it has a chilling effect on other speech. Is that is that violative?

Archon Fung: Well I think Brendan Carr what he said I read it as a pretty thinly veiled threat to next star and sinclair and and many other uh television networks that run local affiliates saying uh I mean he said we can do this the easy way or the hard way standard mafia right right where i think the hard way is we’re gonna look into your licenses. So I do think that that is over the line. That is a threat of government power on the content of speech. On the other hand, I mean, I think it’s long been accepted the government should be able to speak its version of the truth, which is the CDC offering vaccine guidance or masks or flying the flag at half staff for Charlie Kirk’s assassination.

Stephen Richer: Okay, so the government, because Diane asked, can the present government honestly serve as the arbiter of truth? So whether let’s broaden that. Can any government serve? You don’t think so, but it should be able to speak because it should be able to get its information, which sometimes might be the truth.

Archon Fung: Yeah, which it has a lot of capacities for, you know, in public health and expertise. Okay. to put that out, but I don’t think there is any ultimate arbiter of truth. And that’s why freedom of expression is so important, especially in a democracy, because it allows a wide-ranging process of trying to figure out what’s true. That’s my view.

Stephen Richer: Okay, so before we get to the response, is this different… If the FCC, if Carr hadn’t said anything… Would there be an outrage if ABC had just decided, you know what? We don’t like that type of commentary. We’re going to get rid of Jimmy Kimmel. Is that problematic in your view? Are norms shifting right now? Even within sort of the private domain.

Archon Fung: I think that would have been problematic.

Stephen Richer: But it wouldn’t have been an assault on the First Amendment, because the First Amendment restricts the government from… It wouldn’t have been assault by government. Correct. Right, right.

Archon Fung: So I think that, to me, more… I don’t know. I mean, so John Stuart Mill said that social pressure was a greater threat, could be a greater threat to the free exchange of ideas and expression than governmental pressure. I don’t know where I stand on that. I think they’re both potentially great threats, but I am certainly also worried about social pressure. So I think that in addition to the government respecting the First Amendment, we need a culture that respects free expression and the exchange of ideas and deliberation, that they’re both really important and both need to be nurtured.

Stephen Richer: Do you accept that there’s a line at which you should be canceled? Like, is there a line? Do you think that if you said something so outrageous, but that didn’t incite violence, that Harvard would say, thank you for your service, Archon, but… We suggest you find a different profession.

Archon Fung: Disrespected whole categories of students so that I couldn’t be an effective teacher anymore because it was broadly known.

Stephen Richer: Let’s choose redheads because I’m a redhead. So balding redheads are of inferior genetic makeup. And that’s what I think, and I’m Archon.

Archon Fung: Then if I were an administrator, I would have a conversation with Archon and say, hey, you know, there might be some redheaded students in your class. Can you really teach effectively and do your job effectively? So I think that would be a big part of the conversation, like, am I capable of advancing the organization’s views? I wanted to, this one’s for Sean. So, before the Trump administration, this is probably during the Obama administration, those years, I personally felt that left students were canceling far too often. And I was a little bit puzzled by that because my political education, I wasn’t an adult or even very much alive then, is reading about the sixties and how important students thought free speech was. During the sixties, there was the Berkeley free speech movement. And so like, how can it be that these like progressive students now are so value freedom of expression, dissenting speech so little. And back then it was a core principle.

Stephen Richer: But so this is this, the movement of the progressive wing of the democratic party has the, the movement is well documented. And I think, especially if you look at the ACLU where sixties and the seventies were all about The very Holmesian notion of the radical marketplace of ideas to now.

Archon Fung: They still defended Nazis marching in Skokie famously.

Stephen Richer: To now where they would say, well, we don’t want all types of ideas and some ideas shouldn’t even enter into the marketplace. Do you think that. an instance like this will begin to move the left back towards its safety.

Archon Fung: Absolutely, but I think not for good reasons. I think it will, but for bad reasons. Just because we’re not in power, so. Yeah, so that’s it. So where I landed eventually, I don’t know whether this is right or wrong, is because students like in those decades, in the two thousands tens, like recognize that many university administrators were children in the sixties and they basically agreed with their values. Whereas student administrator or administrators in Berkeley in the nineteen sixties were absolutely not of those values. so if the power agrees with you then why do you need to protect other people’s free speech right it’s like it’s a version of a Bannon-esque kind of argument although i don’t think they would have articulated that way or even thought about it that way but they didn’t have to worry about power coming down on them for saying the wrong thing and if you don’t have to worry about that then your attachment to free speech really recedes into the background. And I think that that happened for left students and other parts of the left and maybe the ACLU even in that period that you’re saying. And now, with the right and MAGA dominant, at least for these few years in government, that attachment to free speech is going to recede for the very same reasons that it receded for the lefty students. But that’s a bad reason, is, oh, now they’re beating me on the head, and now I am defending free speech. You should defend it for a principled reason, whether it’s the libertarian reason or the democratic reason.

Stephen Richer: So let’s talk about the response. Was the response the ultimate testament to free speech in that there was broad public outcry and all of a sudden Kimmel’s back? Now, if you read Disney’s press release about it, they will say, well, he was never canceled. He was just suspended. And we were thinking about this and we needed to have one of those types of conversations that you just mentioned. But he’s going back on the air now.

Archon Fung: But a lot of people, myself included, say, I don’t really believe that. Instead, I think that this was a reaction to the public outcry. and Jimmy Kimmel was, right? Is he going to, was the agreement that he’s gonna trim his sails and not be South Park, right? I don’t know. I don’t think so because I think he probably would have walked, but I don’t really know. If that’s it, that’s no huge victory for free speech, right? But part of the striking thing for me is that it seemed like there was great solidarity among late night comics that firing Jimmy Kimmel was or suspending him was wrong. So, you know, Jon Stewart comes on and makes fun of the whole thing and Stephen Colbert, et cetera. And I thought that that solidarity was super interesting. I think we’ve seen solidarity among foundations, although that’s inside baseball and nobody really paid attention to that. And late night comedians, which is a real contrast to selective elite universities and law firms in terms of circling the wagons and saying the government can’t do this to us.

Stephen Richer: So do you remember the Roseanne Barr issue? She was singing the national anthem? She did something offensive, but it was from the right. And so this, forgive my skepticism of the late night talk show crowd, of Hollywood, of I don’t remember there being a similar rallying to the flag. Comedy is special. Yes, sometimes we dance on delicate subjects and we just, you know, and that’s just important. So I think that’s a good point. I think that I welcome it. yeah i’m glad he’s back on i thought especially loathsome was the FCC’s involvement but i am very skeptical that the that hollywood’s reaction that late night talk show’s reaction is anything but we’re sort we’re with this guy and it’s not.

Archon Fung: Kind of political values based not a principal defense right i think that um.

Stephen Richer: The only way you could test that, I guess, is if you had a very conservative comedian saying something that really pushed people’s buttons and would they circle the wagons to that person’s defense. And I think ten years ago they would have not have. If it happened tomorrow night, I think there’s going to be some people in a little bit of a tough situation where they would say – where they would say, no, no, no, this needs to flourish. In fact, I think that many of them would actually welcome the chance to defend that person. So I think if you’re in the right wing media, I think like, and you want to be defended by the left, I think that you should go on right now to Fox or something like that.

Archon Fung: So I have a question for you. Do you think that all these people canceling their Hulu and Disney subscriptions, is appropriate or do you think it risks suffocating cultural pressure that silences.

Stephen Richer: Yeah, I never know how to, and in fact, I’ve had a conversation with someone around here as far as like, when do you cancel a certain artist? And I realize the question you’re asking is different, but like if the artist’s views are repugnant to you, can you still appreciate the art? Yeah, yeah. But in this instance, you know, I think most of the time those don’t work well. If you look at what was done to Chick-fil-A. The boycott. Hobby Lobby. Yeah, yeah, yeah. Not very effective. Budweiser was an outlier. When Budweiser had a promoter who was transgender, the backlash was intense, it was prolonged, and it had a material impact on their stock. And so that was one where it was effective. Was this one effective? Disney’s stock has gone down a lot over the last five days. I don’t know enough to know whether… Yeah, I don’t know enough to whether that’s, you know, was triggered by some of the reactions, some of the canceling of the subscriptions. I would probably not just because they have the ESPN suite. Yeah, yeah. It’s college football season.

Archon Fung: So I guess this is kind of a bet is I guess I’m leaning in toward that. It’s kind of more OK than not OK in both the Budweiser case, which is on the right side and on the Jimmy Kimmel case. Because I think like that effort organizing a boycott or canceling services or not buying beer is a part, that’s a way of having a social conversation about what the values are. And so that’s like the optimum. There’s a deep optimism in me on, you know, kind of First Amendment and marketplace of ideas. But then another person could come and say, no, that’s terrible. That’s just the mob. Right. And I don’t really have a good defense against that. Like, why is it the mob rather than one big, beautiful social conversation about what our values are, and then acting on that with our credit card?

Stephen Richer: Yeah. So that’s that’s another thing where it’s the legal side. Nobody’s doubting the legality of boycotting. Right. Right. But is that healthy for society? So another person pointed out in the comments that Target was very adversely affected and remains adversely affected for some of the stuff that they did in support of LGBTQ rights and that they suffered a backlash and continue today. So, no, I would say obviously that’s OK because you’re you’re you’re speaking with your feet. But does that create the type of society that you want to create?

Archon Fung: That suffocates. Right, right. It’s not illegal. I’m not going to prevent. I’m not going to insist that someone not cancel.

Stephen Richer: We don’t have a Holmesian marketplace. We have distinct markets then where, depending on your politics, you don’t shop at this store and you don’t drink this type of beer. And then we don’t have any integration. So I guess I would say is don’t do that, because I think that would lead to potentially fuller polarization if we have such distinct market prices.

Archon Fung: I see. If everybody on the kind of drop of a hat says I’m canceling X because I didn’t like something. Then we just filter into you only listen to stuff that lines up with you in every single opinion. And I guess I got to give a shout-out right now to Tova and the team who wrote a paper this week on sports. Yeah. And that’s been, to me…

Archon Fung: The Raiders. The Raiders.

Stephen Richer: Sports is one of the few things that brings together still people of vastly different economic status, vastly different political status. And so I would have said the same thing about Budweiser too. Like everyone drinks Budweiser and lots of people listen to late night talk show, even if you’re not, conservative right if you’re very liberal. because it’s funny yeah and so yeah i get nervous about with the boycott movement that we’re just become siloed into like has happened with churches too like this is the conservative church this is the liberal church and neither the tweens will meet it’s like wait don’t you believe both believe allegedly in the gospel of christ right right so i i think that’s problematic.

Archon Fung: Yeah yeah I we’re about out of time. I kind of want to end by with a little bit of understanding for the Steve Bannon’s and the left students and people wanting to cancel Jimmy Kimmel, but say that it’s the wrong position. Right. Because it kind of goes back to this Holmes quote, like it’s really hard to be a Democrat and it’s really hard to be in favor of a small “d” democrat. And it’s really hard to really be in favor of a free speech principle like those are hard. I think in some ways go against our deepest wiring because we have to tolerate things that we think are evil or just flat out wrong. wrong right or just not true and so the effort to really be committed to free speech is to say I might be wrong I have to tolerate that I have to listen I have to try to respond in some way but I think that that’s the kind of impulse that needs to be in all of us or the vast majority for democracy really to thrive and maybe even to survive these days. But I want to acknowledge that it’s really hard to be that. And I think part of for me is like people throw out free speech like it’s super easy to be committed to that principle. I just don’t think it is. I think it’s really hard.

Stephen Richer: It’s just an appreciation for both the challenges and the merits of it.

Archon Fung: Yeah, at a very individual, kind of personal level for people who have strong beliefs, which all of us do. So last question. Well, two-part question.

Stephen Richer: Did you watch Kimmel before? And are you going to watch tonight?

Archon Fung: I did not watch Kimmel before, and I definitely will watch tonight. I don’t know that I’ve ever watched it, but I will definitely plug in and at least be aware of what’s being said tonight.

Stephen Richer: And I guess I hope that… I’m hopeful that he is kind of outrageous and really pushes the envelope and really tests Disney. Like, you put me back on. I’m not going to play nice. Yeah, right. To show us that that secret conversation with the execs was not really a matter of bending the knee.

Stephen Richer: Not because I want him to say anything lurid or horrible about a tragedy, but just because I think that the conversation in and of itself is an important conversation.

Archon Fung: Yeah, to demonstrate freedom.

Stephen Richer: All right well thank you we hope that we answered a few of the questions. I know there were more and I know that we didn’t get to all of them we’ll take a look at them Appreciate it. Let us know if you have any ideas for future weeks. We obviously love hitting some major topics, but if you have any other ideas on what a learned, long-time Harvard professor can be talking about in the social ecosystem, let us know.

Archon: And a huge shout-out once again to Courtney, Colette, Sarah, and Evelyn for making the livestream possible. Thanks for joining us, everyone. Hope to see you next week.

Stephen Richer: Thank you.