Terrance Heath

A First Amendment Primer

Filed By Terrance Heath | December 23, 2013 5:00 PM | comments

Filed in: Living
Tags: censorship, constitutional amendment, Duck Dynasty, First Amendment, Phil Robertson

After listening to the Morning Joe panel spar over a Duck Dynasty star’s anti-gay rant, it occurred to me that a primer on the First Amendment may be in order. I'm no legal expert, but I think I can handle this.

Let's review. The First Amendment to the constitution reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Congress, it says, shall make no law abridging the freedom of speech. That it. That means the government may not prevent you from exercising your right to freedom of speech. Nor may the government retaliate against you for speaking your mind. That includes the right not to speak, as well as the right to use offensive words to convey political messages, political contributions, advertising, and symbolic speech. There are some restrictions, including the classic "shouting fire in a crowded theater," which means you don't have the right to incite actions that would harm others.

But that's it. There's nothing in the first amendment about a television network suspending you from a show for incendiary comments. Now, if the government had demanded the network suspend you for your comments, that might be a violation of your first amendment rights. That's not, however, what happened here.

What happened here is that the network, probably concerned about the impact of public reaction to this guy's anti-gay rant on their bottom line. They were probably worried about the possibility of boycotts, and the potential loss of advertisers etc. In the age of social media, your words can travel several times around the globe within minutes, and the backlash can be almost immediate -- and huge.

A television network is a private entity, not the government, so its actions are not first amendment violation. The public is not the government. So its actions -- boycotts, protests, etc. -- are not only not violations of freedom of speech, but are also examples of protected speech. So, if you make a comment that ignites controversy, the public responds negatively, and your television network cuts you loose or sends you on an extended vacation, your first amendment rights have not been violated.

Note: If you or your family make a public statement in response to your suspension, you are still exercising your first amendment rights, which means you still have your freedom of speech.You just don't have the platform of your television show at the moment. Beyond making a public statement, you might start a blog, or your own YouTube channel and continue to communicate directly with the public.

We've seen this before. We saw it when Dr. Laura quite her radio show, after a public backlash over her use of the "n-word." We saw it when Chick-fil-A CEO Dan Cathy's anti-gay comments sparked a boycott. We saw it when "ex-gay" singer Donnie McClurkin was cut from an MLK concert, due to "potential controversy" over some of his previous statements. In each case, the individuals involved and their supporters cried that their "freedom of speech" was somehow violated. (Usually in statements issued from their own websites or video channels after the loss of the first amendment rights.

The right to freedom of speech doesn't include the right to have someone else provide a platform for that speech. It means you have a right to freedom of speech, but you don't have a right to a television show, a radio show, or even the "right" post comments on blogs or public forums belonging to and administered by others.

You can always start your own. These days, anyone with an internet connection -- or even just a smartphone -- and five minutes can have their own media outlet. But you don't have a right to someone else's.

Here's the bottom line from an actual first amendment attorney, Marc J. Randazza, written during the Chik-fil-A controversy.

The First Amendment protects you from government action suppressing your right to free speech. It does not protect you from private individuals’ negative reaction to your speech. As an extreme example: In my younger and more impulsive days, I punched out a guy who offended my then-girlfriend (now wife). He said he was exercising his First Amendment rights. I agreed and told him that I would defend him if the government messed with him, but the First Amendment didn’t protect him from a private punch. I broke a few laws that day, but I didn’t violate the First Amendment.

Similarly, the First Amendment does not protect you from criticism. Sarah Palin infamously took us all back a few steps by ignorantly criticizing the media for its negative commenting on her views. She said, “I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.” This statement is utterly wrong. The First Amendment does not protect you from scrutiny or criticism by the media or others.

What the "Duck Dynasty" clan, and others, seem to want is freedom of speech without consequences. They want to be able to speak their mind without negative reaction from private individuals (or, in the case of boycotts, private individuals collectively expressing their outrage). They want to be able to speak their minds without criticism or scrutiny, from the media or others. They want to be able to speak their minds, and have their opinions or beliefs stand unchallenged.

It doesn't work that way. The only way it could work that way would be to take away everyone else's freedom of speech, preserving yours.

So, to review: You have freedom of speech, but so do others. That means your freedom of speech may have negative consequences if others use their freedom of speech to express their outrage. Those consequences might include the loss of your radio show, your television show, or a public appearance.

It might be inconvenient, and even upsetting. But it's not a violation of your first amendment rights. That you're still free to complain about it is proof of that. If you think about it.


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