What does the Jimmy Kimmel episode reveal about free speech in America? Ilya Shapiro, Charles Fain Lehman, John Ketcham, and Rafael Mangual unpack the controversy surrounding the cancellation of Kimmel’s ABC show and explore how government influence, corporate media decisions, and public protest movements intersect in shaping the national discourse. The panel also discusses controversial figures like Woody Allen and what their continued relevance says about shifting political and cultural norms.

Audio Transcript

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Rafael Mangual: Hello and welcome back to another episode of the City Journal Podcast. My name is Rafael Mangual and I will be your host for the next couple of episodes. So excited today to be joined by my brilliant colleagues. We’ve got Ilya Shapiro, Charles Fain Lehman and John Ketcham on the show today. It’s going to be a great conversation. We’ve got lots to talk about, lots of news.

Ilya Shapiro: Ralph, you’re much better dressed than our normal host. This is great.

Rafael Mangual: I try to be, you know, I got to keep up with John over there. Our resident Dapper Don is so stylish. It really motivates me to step my own game up. I appreciate it.

John Ketcham: Fuddy-duddy, you mean, fuddy-duddy.

Rafael Mangual: All right. So let’s get into the topics for today, guys. All right. So last week, ABC announced that it was going to indefinitely suspend Jimmy Kimmel, the late night TV host, former comedian who’s not really all that funny. But I think it’s fair to say, you know, Kimmel told a bald-faced lie on the air with respect to the assassination of Charlie Kirk. He characterized the killer as a sort of right-wing, MAGA, you know, motivated conservative. This of course is absolutely contrary to everything we know about this individual. And so that was followed by Nexstar Media Group, which is one of the largest TV operators in the country. In fact, I think it is the largest TV operator in the country announcing that it was going to be preempting Jimmy Kimmel’s show. And then that was followed by ABC’s announcement. This chain of events on its own, I think, kind of sets a stage for a national debate about cancel culture, which is of course an issue that we’ve been talking about for a long time, but one that the American left doesn’t have a ton of credibility on for a long time. I think they’ve kind of been the party of cancel culture. I’d love to hear what you guys think about that. But complicating matters further was that President Trump’s FCC chair, Brendan Carr, weighed in just before ABC made its announcement and sort of hinted vaguely at potentially taking some kind of action in response to Jimmy Kimmel’s arguments. And that has kind of morphed what would have been a conversation about sort of corporate cancel culture into a First Amendment debate, right? You know, this is state action. People are saying, you know, ABC wouldn’t have taken, or Nexstar wouldn’t have taken these steps if there wasn’t this threat hanging out there in the ether.

Ilya Shapiro: Jawboning, government pressure, all of that stuff, yeah.

Rafael Mangual: Exactly, exactly. I mean, Ilya, maybe let’s start with you. You are not just our brilliant in-house constitutional scholar, but you are a widely recognized voice on these issues. So let’s just pretend for a minute that the FCC chairman hadn’t said anything, that he had kept his mouth shut. One, what do you make of ABC’s independent decision to suspend Kimmel, who rumor has it was planning to go on the air the night that he was suspended and dig deeper? And then second…

Ilya Shapiro: Double down on the, on the lie, yeah.

Rafael Mangual: Yeah, and then second, what do you make of Carr’s comments? Do you think they kind of create a colorable free speech claim?

Ilya Shapiro: Yeah. So without Carr’s comments, this is just a reprise of the Stephen Colbert cancellation from CBS from earlier in the year. Kimmel’s ratings were even lower than Colbert. He was, you know, I don’t know about this podcast, but many podcasts get higher ratings than Jimmy Kimmel. We’re approaching it, I’m sure, and so clearly understandable business decision in light of what the affiliates were saying. You mentioned Nexstar. Sinclair is a very conservative network of affiliates, all complaining about this. So rumor has it that Bob Iger, the CEO of Disney, had wanted to get rid of Jimmy Kimmel for a while, latched onto this as an excuse. By the way, latest polling says that only like 10 to 14 percent of Democrats believe that the Charlie Kirk’s killer was a left winger. So the lie persists, by the way. We have completely separate echo chambers.

But regardless, understandable business decision. And yeah, we can talk about cancel culture or not, but purely dollars and cents business decision. This is not MSNBC. If you’re a legacy network, you’re trying to appeal broadly. And this was not, this was, you know, a left-wing echo chamber, not funny losing money, all the rest of it.

Brendan Carr’s, Chairman Carr’s comments muddied the waters. That is, it’s never good to have a government official say, we can do it the easy way or we can do it the hard way. We’re going to start pulling licenses if you continue criticizing the president, all of these sorts of things, that’s known as jawboning, pressuring private entities to do something that the government can’t do directly. That would be a direct first amendment violation. Now, now Carr correctly notes that we’re talking about the broadcast networks. We’re not talking about a podcast or Fox news cable, anything like that. So there is a government license because of the narrowness of the spectrum that’s given. And so there are all sorts of public interest regulatory authorities. Normally that’s meant to be understood to be in the context of you can’t have fraudulent things, hoaxes, obscenities, you know, you had litigation about obscenities on the airwaves. It’s generally not understood to be policing the content of speech. So that’s problematic. Doesn’t mean that Jimmy Kimmel in the end, and this is my final point, would have a colorable First Amendment claim because I don’t think he can establish that ABC fired him because of government action. I think it’s still a business decision. But Carr’s comments certainly muddied the waters. And as Ted Cruz said, you know, it is not a good look to have government officials policing, you know, licenses or taking other actions based on whether they like or don’t like what a show is saying.

Rafael Mangual: Yeah, it’s definitely not a good look, but I want to try and channel the other side here for a minute. And Charles, I know you have some thoughts on this. So, you know, I’m just trying to think of somebody who’s looking at this from a distance and saying, OK, well, you have to have a broadcast license for these kinds of networks. And those licenses come with all kinds of obligations, right? We know from George Carlin, right, that there are words you simply can’t say on TV. It’s not entirely clear what public interest means, but why should we feel that bad? It’s not as if people can’t say the things that Jimmy Kimmel is saying. It’s not as if he can’t go on a podcast and say this or on some other kind of TV network that doesn’t require one of these broadcast licenses. Is this really a free speech violation? Charles, do you think there’s anything there?

Charles Fain Lehman: I think it depends on what we mean by free speech, and the part of the issue at stake here is that at least at the cultural level we are very uncertain about what we mean by that. Right? You know I think I think there is a often somewhat slightly more coherent legal account of what the First Amendment today is taken to refer to, and that is distinct from you know a sort of collective notions about when speech should be regulated when speech should not be regulated. You know, it seems to me like in the Kimmel case it turns on one argument is he lied, and there’s a difference between making a statement of opinion, a well-intentioned statement of opinion on matters of public concern, versus dissembling in the public eye, right? If he did this for profit, it would be fraudulent. And the question is, did he knowingly do it or did he genuinely believe that he was in fact representing the truth? It’s extraordinarily hard to say. In some senses, I think this is all like, locally kind of moot. Nobody watches Jimmy Kimmel because nobody watches broadcast television anymore. And so we have this whole regulatory apparatus for like one kind of TV that nobody under the age of 65 consumes. I’m very sympathetic to our friends at National Review who said this is a great reason to just abolish the FCC altogether. But to me the more interesting question is just like, how do we think about how to handle these edge cases? Do we have coherent accounts culturally? Right? There’s a lot for saying this is an odd example of somebody being fired for objectionable speech. The right has long been against people being fired to objectional speech. What’s going on here? That criticism is correct

Rafael Mangual: Yeah, so I mean, there is kind of this other side thing. And John, I want to bring you into this because you have people making this claim, right? Like, hey, the shoe is going to be on the other foot at some point. And so if you exercise this kind of government power, it could be abused against you. But this has actually been something that the right has been arguing with respect to government power for decades and decades and decades. And the left has been kind of intransigent in their refusal to constrict government power. I mean, is there an argument to say, well, hey, it’s about time we start exercising some power to give them some insight into the benefits of small government. Why should we expect they would ever be motivated…

Ilya Shapiro: So this is all just a long game by Carr to get his own agency abolished?

Rafael Mangual: That’s right. There’s something to that, right? If you want to have a conversation about government overregulation and the ever-expansive footprint of the federal government in American life, I mean giving the left who has been a champion of ever expansive government power a taste of what that looks like when they are finally on the losing side of the game, you know, could have some upside in the long term. What do you make of that?

John Ketcham: I think there are less dangerous ways of achieving that goal of abolishing the FCC. I am concerned about the tit-for-tat escalatory nature of something like this. As you rightly say, Ralph, the Left really doesn’t have much credibility on cancel culture. They were the primary perpetrators of it for a very long time. And I do sympathize with Ted Cruz’s characterization that, you know, the Left is going to do this to its enemies when the shoe is on the other foot. I could point us, you know, take it back to New York as I’m always apt to do. There was a rally last week for Success Academy charter schools and it was met with fierce resistance by the public sector union crowd and their allies. So Senator John Liu, for example, called for charter schools to be investigated just because they went on a rally supporting charter schools which serve majority black and Hispanic children of low-income backgrounds. That is something I think the left is going to take up as a cause and run with it if they have the ability to do so. So someone has to de-escalate here and I think to stand on principle and to de-escalate and to say the FCC is too powerful, maybe we should call back some of these powers, is the more responsible course of action.

Ilya Shapiro: Well, part of the problem is the statute itself. You know, what is it to regulate in the public interest? It’s kind of a standardless standard, which at least as applied could be too vague. So, it’s, you know, that standard is, is that, that statutory language has been used to justify the fairness doctrine that if you have one viewpoint, you have to give the same amount of time or space for, for the other viewpoint and all sorts of other nefarious things. So, it’s when the FCC goes beyond just making sure there’s not pornography when school kids can watch it on the public airwaves or on radio waves when there’s the unvarnished Howard Stern Show or something like that. If you go beyond that kind of remit for the public interest, you get into these First Amendment issues.

Charles Fain Lehman: I mean, you are already, we’re already assuming there we should have a neatly delimited category of things that the FCC should obviously get itself involved in. I think even there, it’s a little bit thorny to articulate, you know, to some extent the obscenity, you know, when you see it, when you’re talking about Howard Stern, should the FCC be getting involved in Howard Stern? Yes, no, maybe. And this, you know, I mean, this dovetails with my broader point about how we are thinking about the situation on the right or the left, which is I do not think either side has a neutral principle, a coherent account of when there should be consequences for stating, making objectionable speech, or indeed what objectionable speech is. I think it’s a more comprehensive problem that’s at play here that gets into the public interest regulation. I don’t think we know what the public interest is in a way that perhaps we did in the 19-, I forget when the FCC is promulgated, in the 60s and 70s.

Rafael Mangual: Yeah, I well, you know, like I said, George Carlin would say that really came down to the seven words that you can’t say on TV.

Ilya Shapiro: Here’s another interesting example. So one of the things that the FCC has interpreted its remit to regulate is to prevent hoaxes and misdirection. What’s the word? News… It’s essentially misinformation of a certain kind, but not in the way that we referred to it in the Biden years. So something like Orson Welles broadcasting War of the Worlds in the 30s before the FCC might not be permitted now because so many people thought there was an actual alien invasion. News misdirection, I think it’s called. So, I mean, you could have lots of things that aren’t necessarily a red team, blue team sort of thing. That, you know, that is the strongest case for what, for what Carr is saying, but we get into trouble when it’s viewpoint based.

Rafael Mangual: Yeah, I mean, so this is the thing, right? I think everyone accepts that the FCC regulations mean something, right? So there are some things that you can’t say free of any kind of consequence. The question is, what are those things and is a lie as blatant as the lie that Jimmy Kimmel told worthy of some kind of FCC action? Right.

Ilya Shapiro: Or is that even a lie, right? Is that just his opinion?

Rafael Mangual: Yeah. Yeah. Well, I mean, you know, that gets into interesting territory, right? I mean, who’s ultimately the arbiter of these things? Are we just going to have these fights constantly? In which case, why have the FCC at all, right? If they can’t actually step in in any kind of case to represent, right? There’s a reason, right? The FCC chair is, you know, appointed by the president and subjected to advice and consent, right? This is a political appointee. He is supposed to reflect in some ways the outcomes of the political process. If he is completely impotent, then, you know, he’s not reflecting that political process in any way. I mean, is that really the rule? In which case, why even have the FCC? Why have it be a political appointment at all? But the other thing that I think that this whole debate is kind of assuming without really any good reason is that, you know, who says that Jimmy Kimmel being pulled off the air, that the FCC pulling ABC’s license was going to be the outcome of any FCC action? I mean, certainly they could have just issued a fine that ABC could have paid. And is that different? Right? Is any action by the FCC off the table here, or does it depend on the nature of the action?

John Ketcham: Well, there was a Supreme Court case on this last year called Vullo that basically held…

Ilya Shapiro: Out of New York! Some good old fashioned New York pressure by Letitia James on insurance companies who were dealing with the NRA.

John Ketcham: Right, so we had the State Department of Financial Services head telling banks, insurance companies, other regulated entities not to do business with the NRA. And the Supreme Court held unanimously in an opinion written by Justice Sotomayor that any sort of government coercion to take a position that is what the government wants that party to take or to deter speech that the government disfavors is not acceptable under the First Amendment. It’s unconstitutional. So that’s a pretty bright-line rule, and it was a unanimous decision. So there’s a good claim to be made here that Carr’s actions fall into the Vullo bucket.

Rafael Mangual: And yet I don’t remember any of the angry leftists screaming about Kimmel, expressing any dismay about Letitia James’s decision or any regret about that decision after the Supreme Court issued its unanimous opinion. I mean, so, you know, just as a member of the general public, right—I’m taking my lawyer hat off here—it’s just hard for me to take any of these objections seriously. And, you know, as a political matter, I mean, I don’t really see much reason for the Trump administration to back off.

Ilya Shapiro: And there also seems to be more concern on the left about Jimmy Kimmel getting fired than about Charlie Kirk getting killed.

Rafael Mangual: Exactly. Yes. I mean, I’ve made this point on Twitter a bunch of times. It is just wild to me because when you think about the impact on free speech, especially in conservative world, I mean, you there are a lot of people in our immediate orbit that really do face insane amounts of death threats. I mean, I don’t think people really understand the sort of stuff, some of which comes into our MI colleagues, but certainly other people who are very prominent in this space. I mean, I think Charlie Kirk’s assassination absolutely gave people pause. I think it absolutely changed maybe not necessarily what people are going to be willing to say, but certainly the circumstances under which they’re going to say them.

Charles Fain Lehman: Not just on the right, right? I think you can see the seriousness with which somebody like Ezra Klein has treated this as, I have no special inside information, but it seems obvious to me that Klein is going, wow, this could happen to me too. And it absolutely could, and that’s a terrifying thing. It’s quite reasonable to respond in the way that he has.

Rafael Mangual: Exactly, exactly.

Ilya Shapiro: And his commenters on the New York Times page were overwhelmingly negative about his perspective and warning about political violence.

Charles Fain Lehman: I do think just to stick on the theme about lying for a second and indeed the sort of ambiguities of free speech, part of our challenge is that we don’t have a clear picture of what speech is either socially or, I’ve said this before, but either socially or legally proscribable. And the court has in recent years backed away in the name of free speech from even sort of extreme cases, we’re talking about lying, right? Is lying on air proscribable speech? And intuitively there are a long list of cases where the court has said lies have less constitutional protection than truthhood does. Something like U.S. v. Alvarez where they said claiming to be a Medal of Honor recipient when you are not in fact a Medal of Honor recipient is protected speech. Stolen valor is protected speech. So even there, you know, I think there is there is an unwillingness to promulgate from some people in position of legal authority to promulgate these are kinds of speech that are acceptable and these are kinds of speech that are not acceptable. There’s a real caution around that for good reasons, but one of the downsides of that is that we have no coherent framework for thinking about is this a lie? Is this not a lie? What should we do with that information?

Ilya Shapiro: Well, yeah, I don’t want a government commission or official deciding what is or isn’t a lie. That was another Supreme Court unanimous case about, you know, there’s a number of states, this case came up from Ohio, that criminalized lying about political candidates or ballot propositions. And what is a lie? Well, it’s whatever you get three out of five votes for on this commission. That’s not a way to run a popsicle stand.

Rafael Mangual: Yeah, I look, there’s, there’s, there’s, I think a lot of people are sympathetic to that while also holding the following opinion, which is that lie all you want, but if you’re going to get this special privilege, then you agree to certain rules, right? You know, there’s a difference, I think, between regulating speech writ large and regulating a very small space that only a handful of actors have access to by virtue of the fact that they’ve been given that privilege. And that’s where I think you know, there’s a little more room for debate. I mean, where even my inner libertarian, which by the way is certainly makes up more than 50 percent of me, you know, is willing to at least entertain the argument to the Trump administration here.

So I want to take us out on this because I have a couple other things I want to talk to you all about. So before we move on to the next topic, just, you know, quick, quick answers here, starting with Charles, then John, then Ilya. There are two questions. Will Jimmy Kimmel be back on the air within the year? And will he sue the Trump administration over his suspension? What do think?

Charles Fain Lehman: No, yes, I don’t think he’ll get very far on the latter. Looking forward to his Substack. Not really, I won’t consume it, but I’m sure it be out there.

Rafael Mangual: John, what do think?

John Ketcham: I think yes, but on a tighter leash from the network for business reasons primarily. And also yes, which raises an interesting question if Carr is entitled to qualified immunity.

Rafael Mangual: Very interesting.

Ilya Shapiro: No, no, because there’s no business sense to put him back, but he will join Stephen Colbert and maybe Keith Olbermann on some sort of new man show perhaps, going back to his original roots. We’ll see about that, but no, this is going to be a cultural trope, but I can’t see any return. I can’t see any even litigation. It’s not worth it for him. He’s getting all the publicity he needs that he’s going to get out of this.

Rafael Mangual: Yeah, I think that’s right. Okay, so while we’re on the First Amendment topic, there have been a lot of commentators over the weekend who took to the socials to decry and scream about a lot of the videos that we’ve been seeing coming out of the Chicago suburbs in Illinois that have depicted a handful of clashes between protesters outside an ICE facility and ICE agents who have been trying to clear the path for their vehicles in and out of that facility.

The demonstrators are shown repeatedly blocking access into and out of the facility, standing in the driveway, getting in the way of moving vehicles. And those protests were met with everything from shoves to pepper balls and even a couple of canisters of tear gas, I think, from some of the videos that have been making the rounds. So let’s just start here. What, if anything, do you make of the claim that the right to protest does not extend to the physical obstruction of law enforcement officers because the way that this has all been presented is that this is the, you know, is the Gestapo stamping down on, again, free speech. These people have a right to peacefully assemble. You cannot meet that peaceful assembly with the kind of physical force that we’re seeing. Is it peaceful assembly to block access to a law enforcement facility? Ilya, what do you think?

Ilya Shapiro: It is not. I mean, the right to protest doesn’t extend to a number of things. You can’t just block a road. You can’t, you know, in the campus context, block access to the library or to classrooms, things like that. You don’t have a First Amendment right to assault someone because of your protesting for whether it’s political, artistic, or other reasons. These things are not… You don’t have a right to that. So here there are federal and state laws against interfering with law enforcement actions. And so it’s, you know, the ICE are fully within their powers to clear the way, to arrest people who are blocking them. It’s not even a close call. Now, if you have a legal argument that what ICE is doing is illegal, then file a lawsuit. There are proper channels for challenging that. But no, the right to protest does not mean you can do, you know, whatever you want.

Rafael Mangual: All right, so I mean, that seems like a very clear answer. It’s one that I would give. You don’t hesitate. There’s no gray area. And yet you have hundreds of thousands of people who are with a very straight face making the claim that these are, in fact, constitutionally protected protests. And I mean, and it’s not just the ICE facility, you know, in Illinois. We just saw over the weekend, Columbus Circle, John, here in New York City get completely shut down by this big, massive group of protesters that decided they were going to block the road. And traffic couldn’t get in and out of any part of that section of Midtown just before you hit the Upper West Side. I mean, you know, our...

Ilya Shapiro: We’re about to file an amicus brief supporting the lawsuit in Chicago about the pro-Hamas protesters shutting down the road to O’Hare about a year, year and a half ago that caused huge problems. Yeah, so this can come up in lots of different ways.

John Ketcham: So the Illinois situation reminds me of the O’Brien case where there was someone who burned a draft card and the Supreme Court assessed whether that was constitutionally protected speech and held that it was not because the suppression of that was only incidental to the government’s important interest in maintaining a draft. So I think it’s similar here. I the government has an interest in enforcing the law and if you obstruct the car from leaving the compound, well the government’s intrusion on your expression is merely incidental to its fulfilling its tasks.

Ilya Shapiro: I mean, it’s a separate question whether the ICE car can then just run over these people or whether they have to take the step of like getting out, physically clearing them away, arresting them or whatever. So it’s not that you can just use or like open up with automatic weapons on them or something like that. So there’s all these rules and regulations about what kind of force can be used, but that’s a separate issue.

Rafael Mangual: Yeah, no, but I do think it’s an important issue, Charles, because, you know, I think the protesters know that, right? They are counting on the fact that even if they don’t ultimately get away with what they’re doing, they’re going to slow the process down. They’re going to muck up the works. And in fact, I can’t remember who it was. So, you know, I won’t quote it, but I heard I saw a video that someone had shared where there was like a virtual meeting where they were discussing plans to this effect basically saying like, hey, actually if you just, you know, block this road, that’s going to, you know, increase the burden on the enforcers and they won’t be able to, you know, to get the job done. I mean, at some point, something more serious has to be on the table. Otherwise, you know, we’re just going to get to a point where anybody who’s mad just gets to block the road, right?

Charles Fain Lehman: I think the reason this happens is there’s an affirmative political reward for it, right? So I think there were three different candidates for Congress who were arrested during these ICE protests, not just one, but three. And that, course, we’ve also seen in New York with Jumaane Williams and Brad Lander getting arrested. And this is downstream of this logic of we are living ostensibly in a fascist society in which people are being deprived of their rights systematically by fascist rule. And if you believe that to be true, then perhaps it is rational to attempt to break the law to subvert the actions of ICE. If you really believe the government is illegitimate and you are retailing this idea and your voters are demanding it…

Ilya Shapiro: Then you’re engaging in civil disobedience and should get arrested to prove the point about the injustice of the law or the system or whatever.

John Ketcham: On the flip side, Charles, there’s also not a clear line drawn when there are violent protests, when there are riots, and cities don’t tamp down enough on that kind of thing. So it sends the erroneous message that such activity is okay. It is not. Vandalism, theft, violence, these things are not expression. And to the extent that cities have allowed them to fester in places like Portland, Minneapolis, in some cases in New York, that is feeding this misperception and enforcement needs to happen to act as a deterrent but also a corrective and an instruction.

Rafael Mangual: I mean, that’s exactly right, which kind of gets to my...

Charles Fain Lehman: I do want to speak out for sometime panelist, Tal Fortgang, who has made the following argument, which is that in many senses, this is downstream to connect the speech themes. This is downstream of what he’s talked about as free speech supermaximalism, the idea that there is an increasingly broad sphere of things that are defined as speech. John, to your point, is rioting expressive? I would say it isn’t. But there are lots of things that have been deemed to be expressive that are somewhere on the spectrum from talking peacefully through rioting. Is burning a flag expression? The answer is apparently. Expression with an intrinsic objective meaning. And you know, once when you license one of those things as expressive, there is a cultural logic that says, well, if I can engage in destructive acts in this context, I can engage in destructive acts in other contexts.

Rafael Mangual: Yeah, I so one of the ways I’ve kind of tried to approach this just, you know, throughout my life is like, you can ask when someone asserts a right that you’re not sure if it exists, right? One way to sort of test that assertion is to just ask, well, okay, would society work if everyone who has the right exercised it at the same time? Right. And I think that this is one of those very clear cases where the answer is obviously no. Right. I mean, if every group that was mad about something, if every group that had a gripe decided, okay, we’re just going to block traffic today, society would never function, right? People would never be able to get anywhere. Emergency vehicles would never be able to get people to and from hospitals. Police would never be able to respond to calls for service. You know, grandma would go hungry if she can’t get to the grocery store. It just, society doesn’t work. Given that, right? So we know that you don’t actually have a right to this. Why aren’t cities doing more? And John just really got at this question, which I think is really the right one. I I see these protesters in Columbus Circle over the weekend and they’re just sitting there singing Kumbaya with no fear of reprisal, with no fear that a car is going to decide not to stop for them, but no fear that they’re going to be arrested or directed…

Ilya Shapiro: Because there’s no will among the political authorities to order those arrests. In the ICE case, it’s a little different because it’s the federal government in charge of those agents, so presumably they can do something.

John Ketcham: I didn’t know you were such a Kantian.

Rafael Mangual: So how do we get there is the question, right? Like what is the, what do you think is at the root of the political hesitation to put a stop to this stuff?

Charles Fain Lehman: I mean, I think there is an assumption that has been baked into American culture for a long time that protest is intrinsically good. And in some sense, that’s right, right? You can look at the founders, you can look at the First Amendment protection for free assembly and say, these are core things that Americans do and we are in favor of them. But it is very easy to take that too far and to say not merely sort of peaceful assembly and statement of grievances, just, just for just grievances is justified, but any kind of protest is good because really how can you draw a bright line once you’ve conceded it? The American protest phenomenon is relatively recently, relatively recent historically speaking, you know, it’s a phenomenon of the 1960s, 1970s. Many of those protests were for good reasons. But I think that when you talk about the people who are running cities today, they look at that inheritance and they say there is something intrinsically morally legitimate about the people who are blocking traffic. They are standing for a higher cause because they are protesters. like, you have to disabuse the notion and in part that is done by saying, actually a great deal of protest is done for nonsense and destructive reasons. It’s not intrinsically good. It is in fact often uncivil speech, and we should regard it as such.

John Ketcham: So that’s the justification of the sort of procedure of protest in a sense. I think that city leaders often agree with the substance of the protests also, right? A guy like Bill de Blasio agreed with protesters, rioters, et cetera, for Black Lives Matter, for George Floyd, et cetera. So yeah, in that case, there’s a hesitancy because of an alignment of the values and the sensibilities of big blue city leaders and their constituents on these things.

Rafael Mangual: But it’s interesting that you have to say big blue city leaders, right? Because implicit in that is that, yes, the fact that these protests are not being met with any kind of forceful response is a function of the level of agreement between the protesters and the people who are in charge of keeping order. But you don’t see this on the right. You don’t see this in red cities, right? I mean, this is clearly there is a sort of… There’s something about protest culture that is baked into the political identity of the left and is itself a kind of partisan marker. But the fact that the lack of action is a function of agreement, I think raises some real questions, especially from New York City, which is about to have a mayor that is very much in agreement with many of the people who have been agitating as protesters throughout the city over the last several years. And I would note that Zohran Mamdani has also proposed getting rid of the Strategic Response Group, which is the NYPD unit that normally responds to these protests. But that takes me to the exit question for this topic. Is this going to be a more regular part of our future? Over the next two years, between now and the next elections, are we going to see more of these sorts of obstructionist protests or fewer? What do you think, Charles?

Charles Fain Lehman: I mean, I think my actual answer is fewer. And that gives me pause, because there an escalatory cycle. The rise in political violence is because mass violence or mass action, more peaceful mass action, is perceived by at least some people to not be working. And so my concern is that we will see fewer of these, because we will see worse things instead.

Rafael Mangual: Ilya, what do think?

Ilya Shapiro: Well, relative to what, right? So we had a lot of it in 2020 with BLM and the mostly peaceful, fiery protests and then the Hamasniks after October 7th and all that. Maybe we’ll have less of that since then. I mean, I don’t know. It’s three years left of the Trump administration, so that’s going to be a provocation, but there’s, I don’t know. I don’t know, it’s all part of this cycle of disorder and polarization and things like that. I don’t know if we’ve reached the apogee yet.

John Ketcham: If people respond to incentives and if there’s a positive result from these actions then I think the protesters are going to be emboldened. So it does come down to the government’s response in creating the incentives and disincentives to engage in anti-social activities like this.

Charles Fain Lehman: If I can just add one additional thought to that, people have observed that this year’s campus anti-Israel pro-Hamas protests have been much more muted than they were. And there’s a very simple reason for that, which is that we changed presidents and the whole goal of those protests was to apply pressure to junior staffers in the State Department to throw a hissy fit to change American policy. And that doesn’t work anymore. And so they stopped, says to me is that who is in power matters, systems matter.

Ilya Shapiro: I think a lot of schools started enforcing their own rules as well.

Charles Fain Lehman: That is another case where who is in power matters.

Rafael Mangual: but probably has a lot to do with the Trump administration, which could very well be driven by the Trump administration’s more aggressive posture toward those schools and setting examples in places like Columbia and Harvard. All right, so we’re, yeah.

Charles Fain Lehman: So I agree with…

Rafael Mangual: Yeah, no, I think that’s right. I think that’s right. So we’re coming up on time here, but we always like to end our episodes for those of you who are joining us for the first time with a little bit of a light item. So I saw recently that filmmaker Woody Allen was promoting a new book on Barry Weiss’s Honestly pod. And I haven’t read the book yet. It’s a novel, but I have enjoyed many of his movies, which I think have really done an incredible job of capturing a very important side of New York City life. And so our question for the end of the show today is what is your favorite Woody Allen film? I am going to take the host prerogative and say that I could not come up with a single answer to this, so I’m going to give my top two, which is Small Time Crooks and a movie I only saw a couple of years ago, Rainy Day in New York, which I thought was just pitch perfect. So John, you’re our kind of most New York New Yorker. We’ll start with you.

John Ketcham: I think the “right answer” quote unquote is Annie Hall.

Ilya Shapiro: That’s what you’re supposed to say.

John Ketcham: But it’s what I’m supposed to say. But Manhattan for me.

Rafael Mangual: Sure. Yeah. Manhattan’s a great one. Manhattan’s a great one.

John Ketcham: It’s got be, yeah. And what’s interesting is that you really can put yourself back 50 years and still feel like right at home, like the buildings have not changed all that much in 50 years, in part because we have a dysfunctional housing market. But I guess one of the consequences of that is the ability to just like transport yourself back and feel immersed in that.

Rafael Mangual: What else hasn’t changed is the nature of a high society get together, I mean, it’s… Charles, what about you?

John Ketcham: Yeah, right.

Charles Fain Lehman: You know my wife would want me to Annie Hall but I’m a classics guy I have to with Love and Death which is really I think dramatically, dramatically underappreciated in Woody Allen canon.

Ilya Shapiro: So I’m probably the least New Yorker here, and I’m not a huge Woody Allen fan, and I actually identify less with his kind of Jewish nebishness type stuff. And so I’ll go from early, and I also have two answers. Early in his career, Bananas about this farcical third world dictator. “Today we will wear our underwear on the outside.” Just kind of surreal kind of fun stuff. And then later, kind of, two movies that in my mind are always linked. Vicky Christina Barcelona, kind of an homage to Pablo Almodovar, the Spanish director a little bit, and I love Barcelona. And also Midnight in Paris, romantic Owen Wilson, time travel, belle epoque, all of these great writers. Probably the least Woody Allen Woody Allen movie, but it’s a good flick.

Rafael Mangual: Alright, well that is about all the time we have. So thank you guys for joining me. Thanks to our wonderful producer Isabella Redjai. For those of you who watching, please take a minute, like, subscribe, throw us a comment, ring the bell, do all the things, help us get this show some more eyes, let us know what you think. We’d love to answer some of your questions. Do that on YouTube, do that on Apple Podcasts, do it on Spotify, wherever it is that you consume this kind of content. Let us know that you’re enjoying these episodes. Until next time, you have been listening to the City Journal Podcast. Talk to you again soon.

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