Both sides are hypocrites

But Trump should still take the high road

Let’s get this out of the way. The FCC shouldn’t have pressured Disney or its affiliates to drop Jimmy Kimmel, just because he lied on television. Yes, the FCC does have (disused) authority to enforce equal time for its broadcasters, but this isn’t an “equal time” situation. By both threatening to enforce against Disney/ABC, and celebrating Kimmel’s firing, FCC Chairman Brendan Carr is turning Kimmel into a free speech martyr on the left, rather than just another unfunny, fading comic repeating leftist talking points on TV. To be clear, this is an extremely small-scale example of what the Biden administration did on an industrialized scale over the last four years, but this doesn’t mean the right should adopt those tactics.

Yes, the left is being hypocritical by engaging in a massive government-led censorship campaign under Biden and then complaining about Kimmel. And yes, the right is being hypocritical by complaining about being censored, and then attempting to engage in these same leftist tactics. “Turnabout is fair play,” JD Vance says. Yes, but it’s not politically astute.

Before we move on, let’s establish that Kimmel did indeed lie, and probably should have been reprimanded (by the market or his employers) for that alone. He said: “The MAGA gang [is] 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.”

This is a straightforward falsehood. We have more than enough evidence that, while the shooter was raised in a conservative family, he developed a leftist ideology that motivated him to assassinate Charlie Kirk. Let’s consider the facts briefly:

• Utah governor Spencer Cox said of the shooter: “We can confirm that again, according to family and people that we’re interviewing, he does come from a conservative family. But his ideology was very different than his family. And so that’s part of it”

• The shooter wrote “Hey fascist! Catch” on one of the bullet casings. He also inscribed a transgender/furry meme “Notices bulge OwO what’s this?” He wrote the lyrics to a well-known antifa anthem on another one of the casings.

• The shooter shot Charlie Kirk when he was answering a question about trans political violence (this may have been a coincidence)

• The shooter had a male-to-female trans roommate/lover

• The shooter texted his lover “I had enough of [Charlie’s] hatred. Some hate can’t be negotiated out.” He also texted “since trump got into office, [my dad] has been pretty diehard maga.” Obviously, Charlie had well-established mainline conservative views, including critical views on trans culture.

• This is so obvious I shouldn’t have to write it down, but the shooter assassinated one of the most popular figures on the right, arguably the top right-wing organizer and cultural phenomenon. A “false flag” would be so unusual as to require an extremely high evidentiary standard.

• A colleague also told CNN that “[Robinson] wasn’t too fond of Trump or Charlie”

• There is no evidence for any other hypothesis, whether it’s the debunked “groyper theory”, or the batsh*t insane “Israel killed him for being insufficiently pro-Israel” theory that some on the right are circulating. (Charlie was extremely pro-Israel, and had clashed with some on the far right over this.)

It’s honestly rare that we have a major act of political violence where the motives are so well-documented. We know virtually nothing about Trump’s would-be assassin, Thomas Crooks. In this case, the shooter put his political views on the literal bullet casings. He told his roommate why he did it, in detail. He probably left a long trail of discord messages, which will come out. And his family, friends, and colleagues all shared information regarding his political sympathies. This isn’t an example of an unhinged schizo committing random violence. This was a carefully planned political assassination that the shooter actually thought he could get away with, if you read his texts.

All of the above was known before Kimmel gave his monologue on Monday night. So why would he say such a thing? As I wrote on Tuesday, the left manufactured a false conspiracy theory based on incredibly flimsy evidence (a Halloween costume from 2018, and the ‘bella ciao’ lyrics on one of the casings) in an attempt to claim that Robinson was actually a far-right acolyte of Nick Fuentes, who had a long-running rivalry with Kirk. There was basically no evidence whatsoever supporting this absurd theory, and even the left leaning press has since completely disavowed the theory. But that didn’t stop Kimmel from repeating it.

Morally speaking, spreading a conspiracy about a political assassination is perverse in the extreme. Tens or hundreds of millions of Americans are mourning the murder of one of the best-known conservatives – while the left is widely celebrating – and you have major talk show hosts trying to pin the blame on the right. This is in a similar category to Alex Jones spreading lies and conspiracies about Sandy Hook, for which he was sued for over a billion dollars. I think this is certainly a fireable offense, but I didn’t think this was likely to happen, since Kimmel makes no attempt to appeal to the right.

That’s when the FCC started threatening to intervene. Within a day, Kimmel’s show was cancelled, or at least paused for the meantime. The left is now busy turning Kimmel into a free speech martyr. This is the best possible coda for his career, as he was fading into irrelevance and his show was likely to be sunset anyway. Now he’s a free speech hero for the left.

This is problematic.

Regulators have a long-running habit of telling private firms which they regulate that they need to disfavor a certain kind of speech or activity. This is called jawboning or moral suasion. Often, the speech or activity isn’t strictly banned, but no one wants to get in trouble with their primary regulator, so they comply.

I covered this behavior extensively with Operation Choke Point 2.0, which was a coordinated crackdown organized by the Biden administration on the crypto space via the banking industry between around 2022 and 2024. This followed OCP 1.0, which was the Obama administration’s predecessor program to cut off firearms manufacturers, payday lenders, and other politically disfavored – but legal – businesses from the banking sector.

It was wrong then, and it’s wrong now.

Though the Supreme Court has never ruled on whether financial regulators like the Fed, the FDIC, and the OCC (together with the DoJ) were legally able to pressure banks to cut off entire classes of legal industries from banking, there have been some related cases.

First, you have NRA v Vullo, in which SCOTUS unanimously found that the NY DFS attempted to coerce banks into not doing business with the NRA. This was a relatively straightforward case given how explicit the attempts at censorship were. More saliently, you have Murthy v Missouri, which was a case brought by Missouri AG regarding the Biden admin’s attempts to coerce big tech platforms to censor truthful free speech on a number of controversial topics, including Covid. In the end, SCOTUS ruled 6-3 that the states lacked standing to bring the case. Even though the case was ultimately overruled on a technicality, both the facts borne out in the case and the Biden admin’s desire to appeal it to SCOTUS shows how committed they were to trying to stifle perceived “misinformation” on social media.

In his dissent, Justice Alito wrote:

For months in 2021 and 2022, a coterie of officials at the highest levels of the Federal Government continuously harried and implicitly threatened Facebook with potentially crippling consequences if it did not comply with their wishes about the suppression of certain COVID–19-related speech. Not surprisingly, Facebook repeatedly yielded.

(He tailored his commentary just to Facebook for the purposes of the case, but noted that the pressure extended to many other platforms.) As for Vullo, Alito notes the differences between the two cases, making it clear as to why the ruling in Murthy is so unfortunate.

What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision together with Vullo will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.

The whole dissent is worth reading in detail, in particular the section starting on page 40 in which Alito describes how precisely Biden’s White House coerced Facebook into instituting a number of wholesale censorship campaigns, specifically focusing on:

• The (possible lab leak) origins of Covid-19

• Dissenting views around the 2020 election

• The efficacy of the Covid vaccines

Undeniably, there was a degree of misinformation and conspiracy-mongering which was spread, but the government is not and should not be the arbiter of such facts. They effectively deputized multiple private companies into aggressive, far-reaching crackdowns. Some of which concerned information which was later revealed to be true, such as the lab leak origins of the virus. This extended to posts that weren’t untrue per se, but that the government disliked, as Alito notes: “top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured.”

I had followed the case closely from inception and was extremely dismayed by the outcome, as was the WSJ, which called it “a supreme court license for social-media censorship.” In effect, the Biden administration erected a scaffold for the Trump administration to build on, should they have wanted to censor social media in the future. Trump would be morally justified in following Biden’s lead, but politically this would be unwise.

Using state power to censor protected speech (basically, everything short of imminent incitement or other clearly illegal categories like CSAM) is a bad idea. You might think tit for tat is the optimal strategy, because it could create deterrence. But the following will happen.

If Trump tries to replicate the left’s strategy of privately or publicly threatening big tech CEOs to deplatform “misinformation”, Trump will lose at SCOTUS. Moreover, with the possible exception of X, Trump doesn’t have the same cachet with these platforms that Biden did. Under Biden, abundant “trust and safety” teams staffed entirely by the left basically controlled what speech was permitted at virtually every platform. Biden didn’t even have to strictly do all that much to get “covid misinformation” or “vaccine skeptics” or “lab leak hypothesis conspiracists” banned. There was a revolving door between the Obama/Biden admin and the leadership of many of these platforms.

If Trump tried to do the same, social media platforms would fight back instead of simply rolling over, and there would be a loud, public fight.

Moreover, the actual lesson of the Biden-era censorship, both financial (via OCP 2.0) and content-wise, is that it doesn’t work. Conservatives found new outlets to rely on, like Truth Social or Rumble, and new benefactors like Elon Musk emerged to free Twitter/X from its prior censorious approach. Even though temporarily deprived of banking, the crypto industry survived and thrived.

If Trump was able to coerce Twitch into banning Hasan Piker, for instance – and frankly he should be under the ToS alone – he will simply start streaming on Rumble and Kick, like Destiny. If Trump persuades X to ban liberal viewpoints around Charlie Kirk’s assassination, more liberals will migrate to Bluesky. At some point, unstoppable web3 based social platforms will emerge too. The web is simply too fragmented to actually be controlled by a US government which is ultimately enjoined by 1A.

More importantly, suppressing speech doesn’t make it any less true. Conservatives were not able to post vaccine skepticism on social, but this hasn’t changed people’s minds. The lab leak hypothesis was stifled for years; but it still happens to be true. Hunter Biden’s laptop from hell was hidden from view around the 2020 election, but we all know the contents are real, and that Hunter is a reprehensible person.

By embarking on a censorship campaign, even if he has the legal tools to do so, Trump would be surrendering the moral high ground that conservatives enjoy, as the primary recent victims of censorship. And he wouldn’t succeed in their stated aims.

I’m not saying conservatives and the Trump admin shouldn’t punch back, but they should do so within clearly delineated legal bounds. Recent comments by FCC Chair Brendan Carr and USAG Pam Bondi (regarding hate speech) are unhelpful. The right was correct to criticize Bondi and get her to walk back her comments. They should do the same with regards to Carr and the FCC.