Chris Kaposy considers the most recent free speech violation by the Trump administration in light of conservative objections to pandemic-era efforts to limit harmful communication.

__________________________________________

Following the horrific murder of Charlie Kirk, the American television network  ABC suspended Jimmy Kimmel’s late-night show. Kimmel had made remarks allegedly misrepresenting the political views of Kirk’s suspected murderer, and he had criticized the Trump administration. ABC recently reinstated Kimmel’s show, along with the local affiliate stations that refused to broadcast it.

The decision to suspend the show resulted from threats by Trump’s Federal Communications Commission (FCC) chair Brendan Carr who said that “We can do this the easy way or the hard way” to “take actions on Kimmel”, implying that the FCC could revoke broadcast licenses. The local affiliates would have been most affected by FCC threats since local television stations are more subject to FCC regulation than networks like ABC.

The Trump administration is engaging in behaviour threatening free speech. Not too long ago, Republicans were highly critical of similar behaviour by the Biden administration.

Image Description: An artwork depicting an individual with their mouth tied with cloth, symbolizing the violation of freedom of speech.  Photo Credit: needpix.com.

In the 2023 Missouri v. Biden case, a number of Republican state attorneys general and private plaintiffs won an injunction against the Biden administration to prevent it from pressuring social media companies to remove misinformation about the pandemic, as well as election misinformation. At the time, social media companies were de-platforming individuals who were spreading lies about COVID-19 vaccines. The Biden administration was sharing information with the social media companies about the misinformation circulating on their platforms and were encouraging social media companies to take action. To Republicans, these steps amounted to government action that coerced the companies to censor conservative voices. A district court judge agreed, and issued the injunction. To explain the injunction, judge Terry A. Doughty in the Western District of Louisiana wrote that

virtually all of the free speech suppressed was “conservative” free speech. Using the 2016 election and the COVID-19 pandemic, the Government apparently engaged in a massive effort to suppress disfavored conservative speech.

The First Amendment of the US Constitution does not protect speech from private actors like social media companies or ABC. The First Amendment only prevents censorship via government action. Consequently, the arguments against the Biden administration focused on the role played by government in the resulting decisions by social media companies that limited speech on their platforms.

These arguments and the case against the Biden administration eventually went nowhere. The district court injunction was partially vacated on appeal, and the whole case was later dismissed by the US Supreme Court because the plaintiffs lacked standing.

The parallels between the two cases are obvious. In both cases, private media companies reacted to government action by censoring speech. In the Kimmel case, the government’s coercive actions are clear. The government threatened ABC’s corporate owners and local television stations who then suspended Kimmel’s show. In the Biden case, the coercion was less clear. Was the administration just sharing information? Was it “pressuring” the companies? But judges at various levels found evidence of government pressure by at least some government officials.

If conservatives opposed the Biden administrations actions during the pandemic because it amounted to censorship, they should oppose the Trump administrations actions against Jimmy Kimmel, and they should speak out against the further threats President Trump himself has made against any media outlet critical of him.

From an ethical perspective, the Biden administration’s efforts to encourage private companies to limit speech were more justified. These efforts took place during a raging pandemic. Liars on the internet were spreading false information about vaccines. People believed the lies, were influenced by them, didn’t get vaccinated, and died by the thousands.

In Canada, a modelling study showed that about 3000 people died because they believed vaccine or pandemic misinformation, such as the belief that COVID-19 was exaggerated or was a hoax, or that harms of vaccination were being covered up. In the US, the number of people who died because they believed misinformation is likely much larger because of the ten-times larger population and lower overall vaccination rate during the pandemic.

Because of the public health emergency of the pandemic, and the need to avoid mass death, certain exceptions to the normal expectation of free speech can be ethically justified. A government that tells the media about their complicity in the circulation of false information that leads to harm, is acting responsibly. It is reasonable for a government to recommend the suspension of bad actors from these media, at least temporarily – while the public health emergency is in effect.

Conservatives scrambled to oppose censorship directed at them during the Biden administration, but many support similar (and worse) tactics by Trump today, with less justification. Canada has similar protections against government action limiting speech. We should value free speech, as well as reasonable limits on speech when there are grave threats to our health and our lives.

__________________________________________

Chris Kaposy is a Professor at the Memorial University Centre for Bioethics, and an editor of the Impact Ethics blog.