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MICHAEL DUNNE: I'm Michael Dunne. Freedom of speech is, by its very nature, meant to be uncomfortable. After all, the true test of the First Amendment isn't when someone says something we agree with, but rather when they say or write something we don't that basic freedom, the freedom of speech has been getting a workout lately, most famously when the President and Chair of the FCC badgered ABC to remove Jimmy Kimmel from the airwaves. Today, on the show, we bring in an expert on the First Amendment from the University of Oregon to explain that situation and also explain what went wrong. Then in the second part of the show, another challenge to free speech brought by an Oregon vape shop. Note: We spoke after ABC News reinstated Kimmel, but before station owners like Sinclair did. Tim Gleason, professor emeritus and former dean of the University of Oregon school of journalism and communications, thanks so much for coming in and talking with us.
TIM GLEASON: Good to be here.
MICHAEL DUNNE: From your perspective, we're talking about the situation with the Jimmy Kimmel show. What happened regarding the FCC, and in your opinion, did the FCC act in accordance with the rules laid down for the FCC according to mandate?
TIM GLEASON: Well, I think there, there are two or three important elements to this whole story, okay, the first one being that the FCC has, under the Communications Act 1934 there's this public interest, convenience and necessity standard in there, which is frequently called the elastic clause because it's so general, okay, and so it gives the FCC some authority to regulate broadcasters in ways that other media cannot be regulated. That said, there's also a very important First Amendment principle, which is called viewpoint discrimination, which is that the government may not engage in viewpoint discrimination. It can't make decisions based on whether it likes your speech or doesn't like your speech. So, in this instance, you have the FCC chair, Brendan Carr making a quite explicit threat to take action against ABC if it did not remove Jimmy Kimmel, who Brendan Carr believes is too liberal when all is said and done. So, while the FCC has this authority, and broadcasters are treated differently in this instance, I think there's little question that Brendan Carr grossly overstepped the FCC authority.
MICHAEL DUNNE: I know this is a hypothetical, and it certainly didn't happen. But if someone like Jimmy Kimmel had said something very inflammatory, maybe something along the lines of, boy, I'm glad that guy's dead, or boy, you know, it would be great if somebody shot that guy. When does the idea of the First Amendment and freedom of speech cross a line so that a government entity like the FCC could step in?
TIM GLEASON: Well, if what Jimmy Kimmel said actually constituted an incitement to violence, then the FCC would have some authority, or the government would have some authority to act. However, the link between the speech and the action has to be quite imminent, not distant. And so, in this instance, while the government may not like what Jimmy Kimmel said, If he were to say something like you just suggested, it still doesn't have the power to take him off the air based solely on that. Now, there's also the distinction between public speech or public action and private action. There's also absolutely nothing that would stop ABC if Jimmy Kimmel had engaged in a speech such as you just described ABC, saying, No, that's not good. We were taking Jimmy Kimmel off the air, if it's private action, that's perfectly legitimate, and then we can have a debate about whether it was a right action or not, but the private entity would have that authority. What makes this particular instance different is the close nexus between the government threat and the private action. There are recent Supreme Court decisions to make it very clear that the government may not coerce private actors to take action that is a violation of free speech, and it seemed like that kind of happened this time.
MICHAEL DUNNE: I think even as you mentioned FCC chair, Carr said something like, you know, we can do this the hard way or the easy way. It really felt like it was a coercive action.
TIM GLEASON: Well, between what Carr has said and what the President has tweeted or tweeted, or truth social, or whatever we want to call it, yeah, there's, there's little question that, that the President of the United States wants Jimmy Kimmel off the air because he doesn't like what Jimmy Kimmel says. That's clearly a violation of the First Amendment.
MICHAEL DUNNE: It seems to me, there are certain levels in this story, because you've got FCC action, you've got what ABC did. But then you also get down to the individual broadcasters, and there's, there's these large ownership groups of broadcasters, Sinclair being one of them that even though ABC reinstated Jimmy Kimmel on the show, an individual broadcaster like Sinclair, which owns a lot of stations, said we're not going to air them. Could you talk a little bit about how that sort of dynamic plays into this?
TIM GLEASON: Well, the first point is to understand very clearly that ABC doesn't have a broadcast license. Okay, the individual stations, in this instance, the stations that are owned by Sinclair or other organizations. You know, for example, in Eugene, another company owns a, owns KEZI, it has the license, and so Sinclair is perfectly within its rights to say, we're going to take off. We're going to preempt Jimmy Kimmel. Now, Sinclair also has a contract with ABC, and the provisions of that contract limit its ability to preempt and also gives ABC the opportunity to say, Well, fine, you're going to preempt Jimmy Kimmel, but we want him back on the air under the terms of the contract. And if Sinclair were to not do that, ABC would then also be free to say, Well, you're in violation of the contract, so you don't get football on Saturday.
MICHAEL DUNNE: I know you've forgotten more than most of us know about the First Amendment, and I am wondering, in your long career, have you ever seen something like this before? Is this somewhat unprecedented in your view, with regard to what Chairman Carr did and what the President is doing?
TIM GLEASON: Well, it's not entirely unprecedented at the degree to which the President and Carr have been quite transparent about their intentions here, probably the most well-known incident, an instance that's somewhat parallel is in Richard Nixon, who went after Dick Cavett. Okay, you know, so again, another late-night host who Richard Nixon didn't like. It wasn't quite as transparent, but he did make that effort unsuccessfully, to get Dick Cavett removed.
MICHAEL DUNNE: Okay, my last question for you is, where do you think we go from here? Obviously, the Kimmel program was reinstated after a few days, but certainly the President instantly sent out a social media message saying, Oh, well, maybe we should sue. And he mentioned what he called a win versus ABC to the tune of $16 million or something. How do you think this is going to end?
TIM GLEASON: Well, I certainly don't know when it's going to end, because that would require predicting the act, the act, you know, the actions of a very unpredictable president. However, I will say that I think it is we, as in America and a democracy, are in a moment of great peril, and the government cannot be engaging in this kind of viewpoint actions without putting our entire democracy at great threat. If you look at if you look at what Carr said, while you're going to take Jimmy Kimmel off the air basically because we don't like him, is he then going to go after for example, in Eugene, where the two top rated talk show stations are wall to wall conservative, is he Going to go after them because they're biased? No. And so we're in a situation where the government is suppressing speech. And I don't care whether it's a Democratic administration or a Republican administration, the government may not be suppressing dissenting viewpoints simply because it doesn't like them.
MICHAEL DUNNE: Tim Gleason, he's the professor emeritus and former dean of the University of Oregon school of journalism and communications. Really appreciate your insights into this.
TIM GLEASON: Well, thanks for having me in.
MICHAEL DUNNE: Let's delve further into the Free Speech debate and talk to an attorney who is suing Oregon on behalf of a local vape shop owner over advertising limits. John Thorpe, staff attorney with the Goldwater institute. Thanks so much for coming on and talking with us.
JOHN THORPE: Thanks for having me on.
MICHAEL DUNNE: You're involved in an Oregon vape shop owner which is taking the state to the Oregon Supreme Court on October 8. Tell us about this case.
JOHN THORPE: That's right. Well, we represent Paul Bates, who's a businessman in Oregon and his vape shop, and for several years now, they've been affected by the statute that Oregon passed a while back ORS 431, A dot 175, that is frankly, it's a sweeping prohibition on expression. What it does is it bans any packaging for vaping products that might be deemed attractive to minors. Now that doesn't define that phrase as attractive to minors. Instead, what it does is it just turns it over to the Oregon Health Authority to decide in their sole and absolute discretion what they think might be attractive to kids, and if they think it might be attractive to kids. It's prohibited. It's a banned expression, regardless of the fact that there are already laws prohibiting kids from going into vape shops, let alone buying vape products, using vape products, those things are all illegal already. So, this is really just a pure, pure regulation of speech, of constitutionally protected expression.
MICHAEL DUNNE: This reminds me of when tobacco companies, I think, had to change their advertising. I think I want to say something about the idea of utilizing cartoons to advertise cigarettes. Is this a similar kind of situation?
JOHN THORPE: Yeah, so that's a great point that up, because back in the 90s, there was a lot of litigation about this with tobacco companies on their advertising. And ultimately, there were, there were some, some major settlements with most of the big tobacco companies where I believe they agreed to change their advertising certain ways. What's different here, and what's really, really a lot more extreme here, is that this is a law that just comes in, comes in straight from the legislature, and regulates anybody in Oregon who's selling vaping products, and says you can't, you can't package these in any ways that we deem are inappropriate. This is just a sweeping, blanket prohibition, kind of regardless.
MICHAEL DUNNE: So, playing devil's advocate, I imagine some people would say, but you know, there's concern about kids getting a hold of vaping products, health issues and so on and so forth. You talk about in the materials that I read that flavorings are, according to Oregon, verboten on this because kids might be attracted to something like a strawberry or apple flavor.
JOHN THORPE: So, here's what's here's what's actually really bizarre about it. Quite frankly, if the flavorings are legal in Oregon, it's perfectly legal to sell no strawberry flavored or cherry flavored vape juice. What you can't do, apparently, under the regulation, is truthfully describe that product on its packaging. So, it's kind of almost a test situation here for these vape shops, where they're allowed to sell these products to no consenting adults, and yet they can't even, they can't even put descriptions of the pro of the products on the packages. So, Paul actually, and his employees, what they had to, had to do to make sure they weren't violating the law was put little stickers over the because they know these, these products, they come from the factory with manufacturer labels on them and that so they actually put these little censorship stickers so they could lawfully sell these products in Oregon, because they the issue isn't the product itself. The issue is how it's described.
MICHAEL DUNNE: Is Oregon alone in this? are there other states as far as you know that have similar type of laws?
JOHN THORPE: This is the only, the only law of its kind that we're aware of. Now, the government has argued that this is totally ordinary, that other states regulate tobacco products in similar ways, and Oregon has other similar laws. But there are a lot of things about this law, especially its really broad, sweeping nature and just total ban on a category of expression that are really unique to this particular statute.
MICHAEL DUNNE: If you could sort of enlighten us about previous case law with regard to labeling of products. And I'm wondering, you know, are there other types of things? Foods or FDA regulated products that also kind of fit into this, this category of as you would term, violations of free speech?
JOHN THORPE: Yeah, well, the courts have recognized for many years, no state and federal courts both that the government has an interest in ensuring accurate, truthful labeling of products. So certainly, the government can regulate that and say you can't lie about what you're selling, and you can't endanger people's health and safety by putting misleading descriptions in your products. But courts have also been clear time and again that being beyond, beyond regulating essentially the truthful, truthful descriptions of products. Packaging is speech. Packaging is speech from the manufacturer and from the retailer to the customer, and it conveys important messages. And when you censor packaging, beyond just requiring people to tell the truth about what's in the product, when you censor the way that people can communicate with their customers, it hurts everybody, the sellers and the customers alike, and it infringes on a constitutional right.
MICHAEL DUNNE: So, what happens on October 8? Maybe walk us through how this could proceed.
JOHN THORPE: So, we'll go to the Oregon Supreme Court and make arguments alongside the state which is defending the constitutionality of this law.
MICHAEL DUNNE: John Thorpe, who is a staff attorney with the Goldwater Institute, really appreciate you coming on and talking about this.
JOHN THORPE: Thank you so much for having me. It was a pleasure.
MICHAEL DUNNE That's the show for today. All episodes of Oregon On The Record are available as a podcast at KLCC.org. Tomorrow on the show, you'll meet the new police auditor for Eugene. I'm Michael Dunne, host of Oregon On The Record, thanks for listening.
