Bonus Ep! Free Speech in America

Summary

History As It Happens — Bonus Episode: Free Speech in America

Host: Martin Di Caro
Guest: Robert (Bob) Korn-Revere, Chief Counsel, FIRE
Release Date: September 24, 2025

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Overview

This bonus episode dives deep into the state of free speech in America, exploring both its legal protections and its fragile status as a cultural value. Martin Di Caro and Bob Korn-Revere (First Amendment litigator and FIRE’s chief counsel) examine recent events—including the suspension of Jimmy Kimmel’s show amid a new political controversy—to illustrate the growing challenges to free expression from both political sides. The conversation covers government overreach, the pitfalls of “hate speech” regulation, campus speech climates, and the broader importance of preserving a culture of open debate.

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Key Discussion Points & Insights

1. The Current Crisis in Free Speech (00:00–03:13)

• Recent Controversy:

  • Jimmy Kimmel is criticized for his comments on the murder of Charlie Kirk and is suspended by ABC after FCC Chairman Brendan Carr, now appointed by Trump, issues veiled threats against the network.
  • Both liberal and conservative figures are accused of using censorship to benefit their own causes, despite previous claims to value free expression.
  • Trump administration vows to defend free speech while pursuing government actions against critical media.

• Legal and Cultural Value:

  • Free speech, protected by the First Amendment, is also a deeply held cultural value that is currently “under attack on college campuses and on late-night television.” (A, 00:10)
  • The “fight against so-called misinformation and disinformation” led both the Trump and Biden administrations into murky territory, often at the expense of open debate.

Notable Quotes:

“After complaining for years that liberals and leftists...invented cancel culture to go after conservatives...the Trump administration is now going after speech it doesn’t like...”
— Martin Di Caro [00:34]

“There’s free speech and then there’s hate speech. And there is no place...in our society.”
— Attorney General Pam Bondi [01:55]

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2. Chilling Effects, Cancel Culture, and College Campuses (03:13–05:46)

• Greg Lukianoff’s Warnings:

  • The notion of “hate speech” is so broad it often facilitates censorship of opinions across the spectrum.
  • Even government efforts to target misinformation risk stifling legitimate debate (“the suggestion that COVID originated in a Wuhan lab...now considered plausible by many institutions”).

• State of Campus Speech:

  • Alarming findings from FIRE’s college survey: 166 of 257 schools received an “F” for speech climate, and one-third of students show some acceptance of violence to stop campus speakers.

• Blurring the Lines:

  • Distinguishing between criticism of bad ideas and “cancel culture” remains a pressing challenge.
  • Recent instances include a bookstore canceling an event due to the author’s statements on Israel.

Notable Quotes:

“The censorship you support today will be used against you at some point in the future.”
— Martin Di Caro, paraphrasing Lukianoff [07:37]

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3. Bob Korn-Revere on the Law and Culture of Free Expression (05:46–08:33)

• Legal Protections:
  • The First Amendment remains robust, setting a constitutional “floor” for free speech. Governmental threats or punitive regulation are unconstitutional, regardless of partisan motivation.
  • The legal foundation, however, is only part of the equation; the “spirit of liberty” must be alive in the public mindset, echoing Learned Hand’s 1943 speech.
• Cultural Attitudes:
  • Societal willingness to tolerate disagreement is vital. If we lose this, “no law, no constitution can save it.” (G, 06:23)

Notable Quotes:

“The spirit of liberty lives in the minds and hearts of men and women, and if it dies there, no law, no Constitution can save it.”
— Bob Korn-Revere (quoting Learned Hand) [06:23]

“You see that kind of shift depending on who’s in power all the time. And it really doesn’t matter which administration is in power...Either one is violating the Constitution if they’re threatening to use their power to silence somebody’s speech.”
— Bob Korn-Revere [08:14]

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4. Words as Violence: Dangerous Metaphors (08:33–09:58)

• Debunking “Words Are Violence”:

  • Both host and guest reject the growing rhetoric equating speech with violence, calling it “false and truly destructive.”
  • Suppression tactics (e.g., silencing campus protesters over Israel/Gaza) inevitably get turned back on those who supported such measures.

• Consequences of Equating Speech with Harm:

  • If people start to “use violence to stop words,” the foundational sense of liberty and free debate is at risk.

Notable Quotes:

“That metaphor of trying to say that words are violence is both false and truly destructive...the assassination of Charlie Kirk very graphically demonstrates they are not the same thing.”
— Bob Korn-Revere [09:24]

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5. FCC Overreach and the First Amendment (10:01–11:44)

• Carr’s Threats Were Unconstitutional:
  • Korn-Revere directly asserts that FCC Chairman Brendan Carr violated the First Amendment by threatening ABC, pointing to recent Supreme Court precedent (NRA v. Volo) and longstanding doctrine.
  • The FCC’s regulatory power is deliberately narrow, and explicitly denied the authority to censor speech under Section 326 of the Communications Act (1934).

Notable Quotes:

“Government actors can’t threaten adverse regulatory action or promise favorable regulatory action in order to change the speech that’s out there...”
— Bob Korn-Revere [10:12]

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6. When Can the FCC Intervene? (11:44–12:25)

• Narrow Allowances:
  • The FCC is mostly limited to technical regulation (frequency use), not content. Only a handful of limited exceptions (e.g. hoaxes that induce public panic) exist, but these are rare and strictly interpreted.

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Memorable Moments

• The irony and hypocrisy of each side weaponizing “free speech” to silence opponents.
• Korn-Revere’s clarification that legal protections are vital but not sufficient, underscoring the need for a culture embracing open discourse.
• Warning that supporting censorship today risks having it deployed against you tomorrow—no matter your politics.
• Direct legal breakdown of why official threats from government regulators (FCC) almost always violate the First Amendment.

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Timestamps for Key Segments

• 00:00–01:48: Introduction and setting up the Kimmel/ABC controversy
• 01:48–03:13: Political responses and growing calls for censorship
• 03:13–05:46: Lukianoff on “hate speech” and campus free speech crisis
• 05:46–08:33: Bob Korn-Revere on the law, cultural climate, and shifting standards
• 08:33–09:58: The fallacy and risk of framing words as violence
• 10:01–11:44: Legal analysis of FCC actions—clear violation of the First Amendment
• 11:44–12:25: FCC’s actual, limited content authority

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Conclusion

This episode offers an urgent, multi-perspective reflection on the principles and perils of free speech in America. It’s a call to recognize that the health of open discourse rests not just on robust legal protections, but on a widely shared spirit of liberty. Both major parties' shifting stances on censorship, campus controversies, and the cultural conflation of speech and violence all illustrate the fragile state—and vital importance—of defending free expression without partisan blinders.

Transcript

[A]

This is a bonus episode of history as it happens. It's Wednesday, September 24th. Americans are again arguing over the right to argue, to speak openly and freely, to say mean things about one another. Free expression protected by the First Amendment is a legal right. The government may not persecute you for words. It is also a cultural value and it is under attack on college campuses and on late night television.

[B]

We had some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk is anything other than one of them and doing everything they can to score political points from it.

[A]

Well, unless you've been living under a rock, you know that was Jimmy Kimmel talking about the murder of Charlie Kirk, how Kirk's admirers were politicizing the tragedy in his view. Well, then the FCC chairman, Brendan Carr went on a MAGA influencers podcast and threatened abc, Kimmel's employer.

[C]

I mean, look, we can do this the easy way or the hard way. These companies can find ways to change conduct, to take action, frankly, on Kimmel, or there's going to be additional work for the FCC ahead.

[A]

And you know what happened next? Kimmel show was yanked off the air, causing an uproar. The comedian and his program, which I've never watched, returned to the airwaves last night. So what is going on here? After complaining for years that liberals and leftists and snowflakes invented cancel culture to go after conservatives, that they're intolerant and censorious, the Trump administration is now going after speech it doesn't like, even though Trump himself said this upon returning to office.

[D]

I will also sign an executive order to immediately stop all government censorship and bring back free speech to America.

[A]

More recently, his attorney general, Pam Bondi, said this on Katie Miller's podcast after Kirk's death.

[E]

There's free speech and then there's hate speech. And there is no place, especially now, especially after what happened to Charlie, in our society. We will absolutely target you, go after you if you are targeting anyone.

[A]

And then the president, who did say he wanted to defend free speech, said this in response to a question from ABC's Jonathan Karl in the Oval Office.

[F]

Settle this free speech question because you've said that you restored free speech in America. Is that free speech, including for people who are harshly critical of you, for your political opponents, for people who say things you don't like, will treat you unfairly?

[D]

Well, I'm winning. I mean, I'm winning the cases. And the reason I'm winning is because you're guilty John, you're guilty. ABC is a terrible network, a very unfair network, and you should be ashamed of yourself. NBC is equally bad. I don't know who's worse. I think they're equally bad. And you know, for you to stand there and act so innocent and ask me a question like that. But look, you paid a big price because you were dishonest. John, the reason I won that lawsuit was because you were dishonest. You were proven to be dishonest. And so you can't sit back and just say, oh, what do you think? You know, like you're some wonderful person. You're not a wonderful person, frankly. You're a terrible reporter. You know it and so do I.

[A]

Greg Lukianoff is the president of the foundation for Individual Rights and Expression, or fire, as the group is commonly referred to. He wrote a New York Times op ed saying, critics of the idea of hate speech, including my organization, have long warned that the concept is so vague and broad it provides a handy weapon to censor almost any opinion. Unfortunately, he says, we've been vindicated on this point. Consider, too, the fight against so called misinformation and disinformation. The Biden administration, he reminds us, created and then quickly shuttered following criticism, an advisory board at the of the department, Department of Homeland Security, on the threat of disinformation. The Biden administration also pressured social media platforms to censor Americans who posted what the administration considered obvious falsehoods, including the suggestion, now considered plausible by a large assortment of mainstream institutions and experts, that the coronavirus originated from a lab in Wuhan, China. Today, he says, the right is making the same mistakes. So to paraphrase Chomsky, you're either for free speech or you're not. Now, there have always been consequences for speech. People do need to be free to destroy their own reputations. For instance, I don't think many of you would continue to listen to this podcast if I dedicated every episode to praising Adolf Hitler. But where is the boundary between, say, criticizing bad ideas and cancel culture? Canceling someone, uninviting someone to speak at your institution because other people don't want to hear what they have to say? I just saw another example of this. A bookstore in New Jersey canceled an event with an author because people complained about her past statements criticizing Israel. Free speech as a cultural value. Let's look at FIRE's new college survey. 166 of the 257 schools surveyed got an F for their speech climate. A record one in three students now hold some level of acceptance even if only rarely, for resorting to violence to stop a campus speech. One out of three. I'll share a link to this depressing survey in my weekly newsletter on Substack and in the show notes to this episode. Robert Korn Revere has been a First Amendment litigator for more than four decades. He is the author of the Mind of the Censor and the Eye of the Beholder, the First Amendment and the Censor's Dilemma, published in 2021. He is now FIRE's chief counsel, the aforementioned foundation for Individual Rights and Expression. Bob Korn Revere, welcome to the podcast.

[G]

Thanks, Martin. It's great to be here.

[A]

So Jimmy Kimmel's suspension, or whatever it was, is over.

[H]

He's returning to the airwaves. But not all is right in the Republic. How concerned are you about the climate in the country in terms of tolerance of disagreement and free speech?

[G]

Well, I am concerned about the state of the country and it has partly to do with the law of free speech and partly to do with the culture of free expression. At fire, we defend more than just the law of free speech. That's the minimum floor. That's the constitutional requirement limits what government can do in terms of silencing individuals or media organizations. It is the basic law of free speech and it remains strong. But there's also a broader climate and culture of free expression that is important to defend it's learned hand. Famous, famous jurist gave a famous speech in 1943 called the Spirit of Liberty, and he says that the spirit of liberty lives in the minds and hearts of men and women and if it dies there, no law, no Constitution can save it, and no law, no constitution can do much to help it. And it's that culture of free expression and a spirit of liberty that is important to remember and it's important to bolster in our society right now.

[H]

I mean, this is of course, nothing new. The Sedition act under John Adams in the 1790s while the ink on the Constitution was still drying, of course. But you know, just like political violence, regardless of who's doing it or who's being targeted, it affects all of us, regardless of politics. Censorship or crackdowns on free expression affects all of us, regardless of politics. The head of your group fire, actually has an op ed in the New York Times saying that the censorship you support today will be used against you.

[A]

At some point in the future.

[G]

Yeah, we see this all the time. And that's particularly poignant when you look at the ways in which current chairman of the fcc, Brendan Carr has been all over the place when it comes to free expression. As a commissioner of the fcc, he was repeatedly talking about how the federal government does not have the authority to censor. It shouldn't be the nation's speech police. And yet his position has changed markedly since he's become Donald Trump's chair of the FCC and has been using the authority of the fcc, or more importantly, threatening to use the authority of the FCC to come down on broadcasters. So you see that kind of shift depending on who's in power all the time. And it really doesn't matter which administration is in power, whether it's Republican or Democratic. Either one is violating the Constitution if they're threatening to use their power to silence somebody's speech.

[H]

You know, his op ed reminded me of a conversation I had an argument with somebody at a party about, I don't know, six, seven years ago. I was trying to tell this person, and this was during the high tide of the mantra on the left that words are violence. I was trying to tell this person, you may say that now, to silence or revoke invitations to people you disagree with on the right who are invited to campuses.

[A]

Whatever.

[H]

I told this person, you wait, this will be turned against the people who need it most, marginalized people, regardless of.

[A]

Politics, at the first opportunity.

[H]

Alas, we saw what happened to the college protesters who were protesting Israel's war in Gaza.

[A]

They were suppressed.

[H]

And people who did not like what they were saying said that their words.

[A]

Were violent or making them feel uncomfortable.

[H]

Or unsafe on campus. So.

[G]

Well, that's right. And that metaphor of trying to say that words are violence is both false and truly destructive. And if there's any greater demonstration of the difference between words and violence, the assassination of Charlie Kirk very graphically demonstrates they are not the same thing. Particularly if you equate them and think that you can use violence to stop words, then you really have subverted not just the concept of free expression, but of the very meaning of the words of the English language. They are radically different, and they should not be confused.

[H]

Let's fire through some specific issues. Now.

[A]

Did the FCC chairman who you mentioned.

[H]

Brendan Carr, did he violate. Violate the First Amendment when he threatened ABC over Kimmel's remarks?

[G]

Yes. And if you'd like me to elaborate.

[H]

Sure.

[G]

This. This is a concept that, in general First Amendment law was made quite clear by the Supreme Court just this last term in a case called NRA vs. Volo. The court unanimously reaffirmed the principle that government actors can't threaten adverse regulatory action or promise favorable regulatory action in order to change the speech that's out there, either press speech they don't like or to get people otherwise to change their editorial policies. And that's been the law since 1963 at the Supreme Court. And it applies generally across all media platforms and generally for. For speech protected by the First Amendment. Beyond that, the FCC is an agency of limited powers. Not that Brendan Carr would agree with that in his recent pronouncements, but the Communications act of 1934 contains express limitations on what the FCC can do. Section 326 of the act expressly denies the power of censorship to the Commission or even to set conditions that would interfere with the right of free speech. It does allow regulation in the public interest, but that regulation is very limited and does not empower the FCC to do things that violate the First Amendment. The Supreme Court has made quite clear again and again that the public interest standard of the Communications act is limited and must be interpreted with the First Amendment in mind.

[H]

He started answering my next question, which.

[A]

Is the FCC can take action against.

[H]

A broadcaster under certain circumstances for certain violations. Right. Like a hoax that causes a public panic. Right. What are some of these instances, briefly?

[G]

Well, that's right, but even those examples are highly limited. The FCC is mainly a technical body designed to prevent broadcasters from interfering with each other in their use of the electromagnetic spectrum. There is some authority over broadcast content, but it has always been interpreted to be very limited. The examples you talk about broadcast hoaxes, there are maybe a handful of.

[A]

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