ASU law expert explains the critical difference between free speech and the First Amendment

Since the fatal shooting of Charlie Kirk, a raging debate has broken out across the country over what constitutes free speech.

Kirk’s own relationship with the subject is complex. He gained online fame by staging heated debates with undergrads on college campuses about contentious social issues, but also led campaigns to target professors who he felt were spreading anti-conservative ideas in their courses.

Since his death, however, Kirk’s fans have worked hard to brand him as a kind of martyr for truth, and they’ve called on fellow supporters to flag social media posts from people who disagreed with Kirk’s views as cause for them to be fired from their jobs. Many of them have been.

The outrage reached a fever pitch last week, when ABC suspended late night television host Jimmy Kimmel’s show after Kimmel made reference to the politicization of Kirk’s death. Shortly after the suspension was announced, comments from Federal Communications Commission Director Brendan Carr came to light, which suggested he was putting pressure on ABC to make a move.

In an interview on a right-wing podcast, Carr said that ABC could take care of the Kimmel situation “the easy or the hard way.” After we recorded this interview, Carr said that his comments were not intended as a threat against ABC. Any claims that they were, he said, were part of a “campaign of projection and distortion.”

On Monday, after days of intense blowback, ABC announced that Kimmel’s show would be re-instated — a new episode is set to air Tuesday.

If you’ve been following all this — or perhaps more accurately, trying to — it can be easy to reach the conclusion that Kirk’s killing has sparked a free speech crisis.

But has it?

To sort through the chaotic tangle of storylines, Gregg Leslie, the executive director of Arizona State University’s First Amendment Clinic, joined The Show. Leslie said the situation with Kimmel should make people nervous.

Full conversation

GREGG LESLIE: You don’t tend to believe it was just a private decision by a network. Especially after you’ve heard that the FCC commissioner has said that he wants something to be done and that he plans on taking action and made some comment about doing this the easy way or the hard way. We shouldn’t have that kind of official interference in the content of a show.

SAM DINGMAN: And it did come out in a lot of the discourse about this after the suspension was announced that the president had made social media posts to the effect of “Kimmel is next,” after it was announced that Stephen Colbert’s show was not going to continue after a certain point next year. And so it seemed like there was certainly a good bit of smoke that you were just describing, if not necessarily any fire.

LESLIE: Yeah. ... In previous conflicts, we’ve rarely seen such a clear statement of intent of a government official to interfere with somebody’s speech. And that’s an incredible place to be in.

DINGMAN: And just to ask the obvious question here, Greg: Were Kimmel able to prove that his show had been suspended at the direction of the president by way of the FCC, or just by way of the FCC, would he have a First Amendment case?

Arizona State University

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Arizona State University

LESLIE: It all depends on that amount of involvement. You need to establish that proof. If a government official was expressing their opinion that he should be off the air, that can withstand the scrutiny. But if they were actually doing something to make it clear that: “You better do this, or your licenses are in jeopardy, or something else is truly in jeopardy,” then that should be coercive enough to be considered a direct violation of the First Amendment.

DINGMAN: Let’s talk about the other speech-related subject that is in the air at the moment, Greg, which is the rash of people being fired in connection with public statements that they have made, whether it’s on the air or social media about Charlie Kirk. This has kicked up a huge debate about whether these firings are a violation of people’s free speech rights. Help us sort through that.

LESLIE: Yeah, there are many variables you have to look at. First of all, whether it’s a government office that’s firing an employee or if it’s a private company. And whether they’re actually stating that the firing is being done because of an opinion stated, or if it’s because they’re saying someone is promoting or assisting in lawless action.

If the concern is that a statement looks like it’s endorsing political assassination, there’s going to be a lot more leeway for saying, “We have to regulate that." That looks like an endorsement on behalf of the government agency they work for. In a situation like that. There can be an allowance for firing somebody if it looks like they’re speaking out as part of their government job.

But when it comes to private employers, unfortunately, the law is much more in favor of the private employer. They can fire somebody unless there’s a contract or a union agreement or something like that. They can generally fire someone for any reason.

That’s not a First Amendment issue, because the First Amendment is about protection from government interference. And so you’ve got to make that connection to government action before you can really say it’s something that’s protected by the First Amendment.

DINGMAN: So can I ask you, Greg, just in your opinion — I mean, obviously we’ve seen so much outrage over the last week or so about people losing jobs in connection with their public statements about Charlie Kirk. And I think for a lot of people, the Kimmel suspension felt like kind of the climax of that building energy. But if I’m tracking what you’re saying correctly, it’s important for people to keep this distinction clear in their minds, because it’s though the Kimmel story may seem like part of the same story as the other firings, they really aren’t the same thing.

LESLIE: Yeah, and this is kind of one of the big reasons why people don’t like lawyers. You know, I feel like my obligation is to sit here and say, “Well, it depends.” If it’s a public office, they do have greater limits on what they can do about your speech. If it’s a private organization, they have much more leeway.

So it’s all part of the same feeling, definitely part of the same movement where it’s frustrating to be told that you can’t speak and that you’ll be punished for your speech. And so people will always have that same reaction.

And it’s always the lawyers who are asked about a remedy, who will say, “Well, that depends.” And there are different remedies based on the nature of the employment.

So it is frustrating, but it’s important to remember that the First Amendment is only a protection against government interference with speech.

DINGMAN: Yeah. And to be fair to folks who are upset about the firings that don’t seem to have anything to do with government interference and are just people being fired by private employers, I understand where that outrage is coming from, because Charlie Kirk’s assassination has kicked up this whole debate about the nature of free speech and what it means, and what some see as a hypocrisy between Charlie Kirk, who notionally believed in free speech and open debate, now being the cause of people who feel like they’re engaging in free speech and open debate losing their jobs.

LESLIE: And that’s, you know, at the heart of any speech debate is that idea of who’s telling me what I can and can’t say? And unfortunately, employers have a lot of leeway. Luckily, government offices and officials don’t.

DINGMAN: Obviously, as we’re recording this, we don’t yet know what Jimmy Kimmel was going to say when he comes back on the air. But it does seem like money was a big factor in deciding to put the show back on the air. We’ve seen a lot of reports of people canceling their Disney+ subscriptions, canceling their Hulu subscriptions. What do you make of the role that it seems like money played in the resolution of all this?

LESLIE: Yeah, you know, money always plays a role. Public companies — and every one of our major media organizations is owned by a publicly traded company. And every publicly traded company basically has a requirement to maximize shareholder value. So there will be nonstop questions of how much of a role money plays in these speech related decisions. And I can’t imagine a way that that will go away.

After The Show recorded this interview with Gregg Leslie, FCC Director Brendan Carr said that his comments were not intended as a threat against ABC. Any claims that they were, he said, were part of a “campaign of projection and distortion.”