Pastor Jimmy, Mayor Don, and the Building Commissioner: a Parable

My left and right-leaning friends on social media are talking past each other about the Trump administration’s silencing of late night host Jimmy Kimmel. I have written articles and a book about past misuse of the Federal Communications Commission, so I could go into detail about the specific rules that FCC Chairman Brendan Carr is abusing and where they come from, including the public interest standard, the news distortion doctrine, and the equal time rule.

Yet I still find myself struggling to help folks who don’t have my unhealthy obsession with broadcast regulatory policy understand what’s going on. So let me give an analogy that’s more legible to the kinds of folks who populate my Facebook feed.

Imagine that you attend one of the multi-site, nondenominational churches in your town, The MouseHouse (named for the way that even a crumb of faith can move the mountains of adversity in our lives). Its theology is evangelical and most of its members are Republicans, but it’s not an overtly political place. You’ve never invited TPUSA Faith, Sean Feucht, or the like to speak, not because you disagree with them but because you’re not comfortable with bringing explicit politics into the pulpit.

Regardless, your pastor, let’s call him Pastor Jimmy, gets drawn into a prolonged tiff with the town’s mayor over a range of issues, like his plans to mandate trans-inclusive bathrooms in township offices, supporting the town’s annual Gay Pride parade, and cutting the ribbon for a new Planned Parenthood office. The Mayor, who we’ll say is named Don, is furious at these narrow-minded, parochial, hateful, pretend followers of Christ! How dare they undermine his authority, cast doubt on his probity, and gum up his efforts to make the town great.

Yet there’s nothing that Mayor Don can do to directly retaliate against Pastor Jimmy and The MouseHouse. The First Amendment to the Constitution protects his rights to speech and worship, so the Mayor can’t just have the Pastor arrested and silenced. No, he’s got to be cleverer than that.

It turns out that the Mayor has a staunch ally in local government, a Mr. Crendan Barr, who is the town’s Building Commissioner. It is his job to oversee compliance with the building code and issue occupancy permits. Now, the Building Commissioner is supposed to remain strictly neutral to the content of whatever building he’s certifying for safety. It doesn’t matter if it’s a school, nightclub, or church so long as it is well built and maintained.

However, Mr. Barr wants to win the Mayor’s approval, so when he hears Don complain again and again and again about his wish that someone, anyone, would rid him of this troublesome pastor, Barr listens and thinks of a way. He realizes that The MouseHouse doesn’t own most of the property where its multiple sites meet. It leases space in storefronts and movie theaters and other properties.

And, bingo, most of those properties belong to a big local real estate holding company, Nexstar. And Nexstar, as it so happens, frequently has business before the Building Commissioner. Whenever they purchase a new property, they have to get an occupancy permit from Mr. Barr before their tenants can move in. If that approval was held up, or denied on some thin pretext — and you can always find something in the building code if you look hard enough — then they will lose lots of money.

So Mr. Barr abuses his position and weaponizes the permit system / building code. He goes on a podcast with a local journalist and says, “Look, Pastor Jimmy is slandering and maligning and distorting the Mayor, his agenda, and his allies in government. I think Nexstar should consider whether renting space to Pastor Jimmy really serves the community, whether it’s in the public’s interest to provide him with a platform in our fair town. But if they don’t change course, it’s fully within my powers to revoke their occupancy permits. I don’t want to, but we can either do this the easy way or the hard way.”

A few hours after this interview, Nexstar announces that it is immediately revoking permission for Pastor Jimmy to stream his sermons at properties they own while they reevaluate their relationship with the MouseHouse going forward. Furthermore, they promise to pipe in a documentary praising the Mayor’s forward-thinking agenda during the time slot that would have been filled with a sermon.

Now, when Pastor Jimmy and his church members find out, they declare that they’re being silenced, that their First Amendment rights are being trampled upon. Some of the Mayor’s fans smugly note that the church wasn’t really paying much in rent, so Nexstar was simply making a smart business decision. However, the Mayor himself crows about finally getting revenge on Pastor Jimmy for criticizing him and suggests that other churches that get on his bad side might be next. Others justify the action because what Pastor Jimmy was preaching was hate speech and not free speech.

If this happened to your church and your pastor, would you agree that this wasn’t a free speech issue? Of course not! You’d point out that the entire point of all of this was the Mayor and his allies trying to punish their critics by hook or by crook. The fact that they leaned on an intermediary, Nexstar, instead of the church directly doesn’t change the true target. And the fact that occupancy permits are important and meant to serve the public interest doesn’t excuse their weaponization by a corrupt town official.

This, of course, is what Federal Communications Commission’s Brendan Carr did when he weaponized agency rules in order to threaten Nexstar’s merger with another television station ownership group. (I put some of Carr’s actual words in Barr’s mouth.) Nexstar needs his approval, which is supposed to be granted on technical grounds, not content grounds. But Carr is trying to win favor from his boss, President Donald Trump, who has crowed about his victory over Jimmy Kimmel. This puts the lie to Trump’s enablers, who are attempting to excuse this censorship on the thinnest possible grounds.

The example is purely hypothetical, of course, but if we demolish our free speech norms and weaponize routine government powers against our critics, we create a war of all against all. And our democracy cannot long survive a system in which whomever is in power wields these regulatory weapons against their enemies, and then is targeted by them in turn when the other side takes power. The shoe will end up on the other foot and you’ll soon find you and yours targeted with State repression for your own unpopular speech. And back and forth and back and forth it will go, until, finally, someone decides to stop taking turns.