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In the last few days, if you have a smartphone, it has likely blown up with comments about Netflix, Jimmy Kimmel, and spurious claims about how censorious Conservatives have become.  Aren’t they just as bad or worse than Progressives when it comes to issues of free speech?  The answer is no, and it’s not even close.

Free speech, as we are using the term, means what the Constitution says, that Congress shall make no law abridging freedom of speech or that of the press. 

It is worth remembering that law is ultimately the use of force, which should be applied rarely in our society.  If you violate the law, the sheriff will come to arrest you. If you resist arrest, the sheriff or policeman can use force to detain you.  If you are convicted, you will be incarcerated against your will, and if you resist the jailers, they will use force. In both cases, if you physically resist the police, or officers of the court, or the penal system, they can use force, and even deadly force if you present a clear danger to them.  So, think it through.  Law is ultimately the use of force.

However, the debate over free speech remains muddled. For the Left, they have always called speech that they disagreed with their sexual and racial orthodoxy hate speech. They have banned books from libraries, called for safe spaces, and threatened Conservative speakers on campus.  Their hatred of free speech has been consistent. 

Conservatives have been more consistent, except for the recent outburst by Attorney General Pam Bondi, where she parroted Leftist lines about hate speech, which thankfully she recanted the next day.  And, some Conservatives did edge closer to speech control in their grief over the murder of Charlie Kirk, and those who have encouraged violence.

However, the courts have been relatively straightforward in stating that “incitement” must be direct. “Incitement” refers to a narrow category of speech that loses constitutional protection when it crosses into advocating illegal activity in a specific way. The landmark Supreme Court case Brandenburg v. Ohio (1969) established the controlling standard, known as the Brandenburg test, which has two key elements that must both be met for speech to qualify as unprotected incitement.

First, the speech must directly call for illegal actions rather than merely expressing abstract ideas, opinions, or general advocacy.  Secondly, there must be a realistic probability that the speech will lead to imminent lawlessness—meaning the harm is about to occur immediately, not in some distant future.

Much of the speech we have heard from Jimmy Kimmel and others has been disgusting and wrongheaded.  However, it was not incitement, and therefore, nasty and reckless speech remains protected from government interference under the First Amendment.

If the FCC removed the broadcast license from a television network, it could only be done, as argued, because the limited bandwidth of broadcasting technology at the time meant that broadcast airways were considered “public property”, which the government has historically said it can regulate.  Companies were granted permission by the government to use these airways, albeit with some restrictions on the content and a pledge to serve the vague concept of “the public interest”.  We have never seen the FCC close down an entire network because of the behavior of one of its performers, and we doubt it could ever be justified. However, Carr did not clarify what he meant.

Even in the worst of circumstances, Kimmel could go to cable or podcasting because neither of those formats is regulated like the “public” airways.

However, Carr and Bondi confused the distinction between Progressives and Conservatives, which was not helpful.  Progressives do want to use the government, even though they feign horror at the prospect.  Conservatives should not want government involvement, but feel that voluntary boycotts and ostracism are the best methods to deal with speech that is extreme. 

Moreover, conservatives did not ask for Kimmel to be taken off the air; private broadcast companies like Sinclair and Disney did so for a short period of time because they thought his low-rated show had further tarnished the companies’ reputations with his tasteless and misleading lies about Charlie Kirk and who assassinated him.

An employer disciplining or firing an employee is not the use of law or government force.  It is a private action responding to the market.

So, conservatives should not be talking about using law or force, and for the most part, they aren’t. However, voluntary social sanctions, such as ostracism and boycotts, should be considered.

Progressives are deliberately trying to conflate voluntary sanctions with “suppression of free speech” by law.  The two are quite different and distinct.

The reaction of Progressives is pretty telling.  They, in fact, were the instigators of “cancel culture” and celebrated when Rosanne Barr was taken off the air and when Megyn Kelly lost her network job.

Further, they did something even more devious.  They enlisted the tax-free status of non-profit groups such as the ADL and SPLC to label groups such as Charlie Kirk’s Turning Point USA as a “hate group” deserving spying by the Federal government, a violation of their rights of both speech and privacy. Why the FBI would farm out research to these two outfits is interesting. Moreover, just as this story was reaching its peak in the news cycle, we were reminded that the Biden Administration had leaned heavily on Google to censor and deplatform (put out of business) voices that the administration found objectionable.

Is that the use of government force? Arguably, it is, due to the murkiness of regulations and the necessity of cooperating with the government to operate as a business; these companies felt compelled to comply with the government’s directives. 

It is not clear what defying the government’s order would have meant for these companies. The government, with its regulators, police, and intelligence services, can clearly intimidate a corporation.  The government regulates the company’s stock trading, financial reports, banking relationships, labor relations, and a host of other functions. Since this Progressive policy of intimidation uses the instrumentality of the state, we would construe that as force.  What other category would you put it in?  You can’t call this a voluntary action.

The government acted somewhat like a mafia thug.  They did not have to take direct action, allowing them to maintain plausible deniability.  All they needed to say was the equivalent of: “You have a nice place here. It would be a shame if it burned down.”  The companies got the message and complied.  Compliance may be necessary when the government can launch investigations and lawsuits with impunity.  The “process” becomes the punishment, even if years later, you manage to prevail in court.

So the government did not directly violate the free speech rights, which the Constitution prohibits.  They got private parties to violate free speech on their behalf. Clever indeed.

This raises an important question: Can the government undertake what would clearly be unconstitutional actions if they were farmed out to third parties?

So it was Progressives, one way or the other, who ran to get the government to suppress speech they did not like.

Conservatives have not done that. And if it is attempted, we would strenuously object to it. Government should not be involved in the free speech business, but private citizens are free to object to speech, as long as they don’t use force to suppress it.

In the case of Netflix, Conservatives are not concerned about the company advocating for homosexual relationships or the promotion of transgenderism per se.  They object because Netflix has designed products to groom children, who cannot give consent to have sexual relations with adults.  These cartoons are created for and directed to children.

The public has good reason to be upset, and many have called for canceling their Netflix subscriptions as a way to send them a message.

Cleverly, Netflix has taken up the role of parental instruction about sexuality surreptitiously, hoping most parents would not be aware of the objectionable content.

Are objections “forcing” Netflix to stifle speech?  Again, force means coercion under the threat of deadly violence, not force in the sense of “better change policy because your customers are upset.”  No one brought harm to Bud Light, and they changed course due to market pressure.

No one is suggesting that Netflix executives be put in prison, although the thought does have some appeal. All Conservatives are asking is that if you think this kind of programming directed to children is harmful, don’t do business with this company.  Voluntary action is non-violent, and no one is asking the government to take any action whatsoever.  

Thus, when engaging in conversation with people, be sure to stress that “forcing” is not an appropriate word.  Conservatives are not engaging the machinery of law enforcement, with the ultimate power to use physical force,  to stifle speech at Netflix.  We are encouraging people to boycott the offending company and deprive it of revenue. Likewise, don’t watch Jimmy Kimmel and let his sponsors know how you feel.

The two concepts could not be more different, and we must not let our opponents conflate them and confuse the public.

Consider movie streaming companies like HBO and Paramount as alternatives, and cancel your Netflix subscription immediately.

If they wish to become a porn site, that is their choice.  We are not required, and we are in fact obligated as parents and grandparents, to fire the company and ban it from our households.

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