US Constitution, First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Inalienable Right
It is a building block of personal freedom. The check and balance on government. A unique feature of the American system. All of these terms are used to describe the First Amendment. There are over 150 nations in the world that guarantee “free speech”. But there is no other country that does it the “American Way”. The First Amendment doesn’t grant a freedom. That freedom is “assumed” as part of the “inalienable rights” of the Declaration of Independence.
Instead the First Amendment places a stricture on the government: “Congress shall make no law…abridging the freedom of speech or of the press”. And, since all of the powers of the government envisioned by the Founding Fathers emanate from the Congress; that means that the US Government in total cannot “abridge”.
What is speech? The Founding Fathers saw it as the ability to critique (and criticize) the government. They believed in a right of “Englishmen” that went all the way back to the Magna Carta in 1215. That right was taken away from them by King George III. It was a founding cause of the Revolution. So it made sense that those same Englishmen, now Americans, would restrict the government (like King George) rather than grant a right they knew already existed.
Unitary Executive
We are in a very different era from the Founding Fathers. In our era, much of American power has devolved to the Presidency. It’s been a game of “pass the buck”. Congress is so politically divided that it can hardly fulfill its most basic duties. They can’t choose a Speaker, or pass a budget, or determine who may or may not enter the United States. But the President is a single power, where only one mind needs to be “made up”. That single power is now in the saddle, emboldened by the “Unitary Executive” theory in vogue in American conservative circles.
And the concept of government power is very different as well. Take the Federal Communications Commission, the FCC. It is an arm of the Executive Branch, essentially granting the President the right to reach out to control the public “airwaves”. That made sense, back when there was a finite amount of “airwaves” (band width) to use. Radio and television took up so much, that the “right to use” a particular “channel” in a particular area was rationed. And, since the government claimed the total width of airwaves, it made sense they would be the one to ration it out.
With rationing came control. The ability to give or take away a license to operate on a particular airwave, say “channel 2” in Dayton, Ohio, was life or death to a television station. Dayton’s Channel 2 in the early 1970’s was owned by Avco Broadcasting, who operated WLW-D. My Dad was the station manager, and ultimately responsible for the station keeping their FCC issued license.
Broadcast License
Dad started an early television talk show that help create a whole new genre of programming. Phil Donahue took over the late morning show, and interviewed people in the news in a single-guest, hour long format. Local folks, at that time often stay-at-home Moms, were able to call in and ask questions. Ultimately the Donahue Show was on 225 stations nationwide, and lasted for almost thirty years, broadcast first from Dayton, then Chicago and finally New York.
In 1970 the Phil Donahue show had radical anti-Vietnam war activist Jerry Rubin on air, and Dad was very concerned. Jerry Rubin was always and intentionally profane, using it to shock his audience into attention. Dad knew that Rubin’s profanity could NOT go “over the air”. His first “F–K” would immediately threaten Avco’s license. And since President Richard Nixon was the general target of Rubin’s wrath, the FCC would jump on the chance to punish WLW-D for giving him airtime.
Ten Second Delay
It was a “mechanical era” of technical broadcast. Dad needed a “delay”; time to push the literal “bleep” button to keep Rubin’s profanity off of the air. And since the broadcast was live, it wasn’t a matter of editing later on. The bleep had to be as needed, on time. So the station engineers set up two massive videotape machines, across the room from each other. The first machine would record the show onto tape. Then the tape was strung across the room to the second machine and would play the tape for broadcast, ten seconds later.
That gave Dad time to push the literal “bleep” button. Rubin’s interview went out, and Rubin, true to form, was “bleeped” a lot. Nobody got tangled in the ten-feet of tape. And everyone got what they wanted: Rubin got his “bully pulpit”, Donahue got the interview, the public got a great show, and Dad got high ratings and managed to keep WLW-D on the air.
Bandwidth
It’s a totally different age today. Cable and streaming have added amazing amounts of content to entertainment, without using the “public airwaves”. So the internet isn’t regulated by the FCC in the same way. We all know this, what comes across our screens (like it or not) is in no way “cleared” for broadcast.
But broadcast over the airwaves stations, still exists. Two major owners of Broadcast stations are the Nexstar Corporation (265 stations, WCMH here in Columbus) and Sinclair Broadcasting (185 stations, WSYX and WTTE in Columbus), about 40% of the total stations in the US. Almost all independent stations usually are “affiliated” with a broadcast network, one of the “Big Four”: ABC, CBS, NBC, or Fox. Other than the network’s “owned and operated” stations, the networks themselves are NOT subject to FCC control. But all those individual stations are, just like Dad’s station back in 1970.
ABC Did It
So when late-night talk show host Jimmy Kimmel called out MAGA-world for using conservative influencer Charlie Kirk’s assassination for political gain, the FCC took notice. And when Nexstar, already in negotiations with the FCC to expand to even more stations nationwide, realized that the Trump appointed Chairman took umbrage to Kimmel’s comedy, the company knew what to do. Nexstar told it’s ABC affiliated stations NOT to air the Jimmy Kimmel Show. Sinclair Broadcasting, already known for its strong right-wing bent, followed suit.
ABC was faced with a choice. They could continue to air Jimmy Kimmel and face the wrath of the FCC on their own stations, plus all of the other ABC affiliates, or pull him. They made, what I’m sure to them, is a “logical” business decision.
It’s the same “logic” that caused Paramount (CBS) to cancel “The Colbert Show”. They needed government permission to merge with Skydance Media, and Colbert is a thorn in Trump’s side. In both cases, neither the President nor the Federal Government “ordered” the comedians off the air. But the FCC exercised its “legal” right to license, and pressured the companies to cancel them.
“Congress shall make no law…abridging the freedom of the speech or of the press”. But the President, through his Federal Communications Commission, can threaten the economic well-being of hundreds of broadcast stations. And he can do it because he didn’t “like” what was said, or how he was characterized, or who made “fun” of him. If it looks like abridging, walks like abridging, talks like abridging, and acts like abridging, it probably is abridging.
What a childish way to lose our founding freedoms.
