I dislike mentioning the First Amendment when controversies like the Phil Robertson versus A&E brewhaha break out. After all, the First Amendment applies only to Congress (and the Supreme Court has ruled [incorrectly, if you ask me] that it applies to state governments via the 14th Amendment), and the actions of a cable network don’t really implicate the First Amendment. On the other hand, Ace of Spades makes a fairly compelling argument that this is too narrow an interpretation of what the First Amendment is all about.
It’s also untrue. Yes, the First Amendment, strictly speaking, applies only to the government. But there is a spirit of the First Amendment too, not just a restriction on government action.
And that spirit is this:
That we should have, to the extent compatible with ordered liberty, the maximum possible right to think and say and believe what we choose, and anyone who attempts to use force to coerce someone to think and say and believe something that is alien to them is acting contrary to the spirt of the First Amendment.
I’ve said this a dozen times:
The real, tangible threat to our right to think and speak as we will, as conscience, faith, or reason (or all three together) might impel us, is not from the government, but from our employers, and from the massively corporate media institutions that impose real penalties on people — fines, really, imposed by firings, suspensions, mandatory Thought Rehab and so forth — for daring to utter words other than the Officially Approved Institutional Corporate Slogans.
Yes, A&E has the right to suspend Phil Robinson. A&E also has the right to stand up for a broad and generous principle of Freedom of Thought and Expression.
Why does no one speak of that right? Sure, they have the right to act hostilely towards the spirit of the First Amendment and use coercive power to hammer people into only speaking the Officially Approved Institutional Corporate Slogans.
As I said, this is a very compelling argument, though I’m not sure I completely buy into it. In the case of employers firing people for expressing their free speech rights, true government coercion, it could be argued, would be actively prohibiting employers from firing employees for expressing unpopular opinions. Now, I personally think employers should give their employees wide latitude when it comes to expressing their opinions, and there are few examples I can think of where it would be acceptable to fire people for their political opinions.*
Which leads me to one of the most outrageous examples of over-reaction I’ve ever seen. Justine Sacco was a communications director for a firm called IAC – I say was because she was fired after tweeting the following:
Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!
The tweet was obviously a (really bad) attempt at mocking the concept of white privilege. It did not sit well with many of the purveyors of decency on the left, and within hours there was a social media firestorm. This woman with barely over 100 followers had become the locus of hate throughout the twitterverse, and soon her employers were compelled first to issue a statement of regret, and then to sack Sacco (sorry).
What was particularly heinous about the incident was how it revealed the true ugliness of social media, and I’m not referring to Sacco’s tweet. Her tweet was dumb, but clearly an example of poor humor and not racism or maliciousness. Yet this woman was hounded by the likes of Buzzfeed and other media outlets, and her tweet drew far, far, far more attention than it really merited. Like a pack of ravenous wolves, they descended on the metaphoric body of the tweet and made sure that not even a bone was left on the carcass. And why? Because of a really bad joke.
Now Sacco certainly deserves some share of the blame. After all, she was a communications director, and as such should have known better. And there’s something to be said about taking a more careful approach with social media. But are we really comfortable with getting a woman fired for a poor joke? Was her company’s bottom line really imperiled by Sacco’s crack? And of the millions of dumb tweets sent every day, why was hers one that merited such attention?
Sacco’s firing troubles me much more than Robertson’s suspension, which is not to say I wasn’t troubled by the latter. Robertson is a public figure, and he’ll be okay in the end. On the other hand, Sacco was fired because she tweeted something that offended certain people’s sensibilities. It had no bearing on her actual work with IAC, and it’s doubtful that her company’s reputation would have been damaged had they retained her. The social media pack mentality also does not speak well for our society as how many individuals mindlessly joined the herd without giving a second thought to what they were doing?
Most importantly I am just concerned about where we are headed culturally when we can’t make a public utterance without fearing the loss of our livelihoods. As Dale Price said, ”If you say you believe in free speech but are routinely demanding “consequences” for speech you disagree with…you really don’t believe in free speech.” Sure we should be responsible for what we utter in public, but we need to have some perspective. I do not want to live in a country where it is acceptable to be easily fired for the flimsiest of comments.
For example, if the Chief of Public Relations for the Democratic National Committee suddenly took to twitter to rip into Harry Reid and Barack Obama, then it would most certainly not be inappropriate for the DNC to take action against that person. More seriously, I’m also thinking of teachers at Catholic schools who publicly dissent against Church teaching.
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
Eugene Volokh at The Volokh Conspiracy takes a look at a bill in Minnesota that would have caused many of my classmates back in my school days to stand mute.
use of one or a series of words, images, or actions, transmitted directly or indirectly between individuals or through technology, that a reasonable person knows or should know, under the circumstances, will have the effect of interfering with the ability of an individual, including a student who observes the conduct, to participate in a safe and supportive learning environment. Examples of bullying may include, but are not limited to, conduct that:
- places an individual in reasonable fear of harm to person or property, including through intimidation;
- has a detrimental effect on the physical, social, or emotional health of a student;
- interferes with a student’s educational performance or ability to participate in educational opportunities;
- encourages the deliberate exclusion of a student from a school service, activity, or privilege;
- creates or exacerbates a real or perceived imbalance of power between students;
- violates the reasonable expectation of privacy of one or more individuals; or
- relates to the actual or perceived race, ethnicity, color, creed, religion, national origin, immigration status, sex, age, marital status, familial status, socioeconomic status, physical appearance, sexual orientation, gender identity and expression, academic status, disability, or status with regard to public assistance, age, or any additional characteristic defined in chapter 363A of a person or of a person with whom that person associates, but the conduct does not rise to the level of harassment. Continue reading
Canada no longer has freedom of speech. The Supreme Court of Canada killed it:
In Saskatchewan (Human Rights Commission) v. Whatcott, the Supreme Court decided that born-again Christian William Whatcott was guilty of hate-speech for distributing flyers to neighborhoods in Saskatoon and Regina in 2001 and 2002. While the flyers used vehement language against homosexual practices and the homosexual agenda, they did not however directly attack homosexual persons. (The flyers are appended to the end of the decision linked above)
The Court focused on Whatcott’s main argument, namely that he loves homosexuals with a brotherly Christian love, and it is only their sexual activity that he denounces.
The Supreme Court found however that with regards to hate-speech, the distinction between ‘sin and sinner’ no longer applies. No longer can Christians give the defense before courts that one ‘loves the sinner, but hates the sin’.
“I agree that sexual orientation and sexual behaviour can be differentiated for certain purposes,” the Court stated. “However, in instances where hate speech is directed toward behaviour in an effort to mask the true target, the vulnerable group, this distinction should not serve to avoid s. 14(1)(b) [the hate-crime clause of the Code].”
“Courts have recognized a strong connection between sexual orientation and sexual conduct and where the conduct targeted by speech is a crucial aspect of the identity of a vulnerable group, attacks on this conduct stand as proxy for attacks on the group itself,” the Court stated.
The Court ordered Whatcott to pay the Human Rights Commission’s legal fees and to pay $7,500 in compensation to two homosexuals who were offended by his flyers. Continue reading
Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it.
One of the more refreshing aspects of the fallout in the wake of the Cairo and Benghazi embassy attacks, is the degree that it has brought out in the open the contempt that many people on the political Left have for affording constitutional protection to speech which they despise. A case in point is Sarah Chayes. Ms. Chayes is about as establishment Liberal as it is possible to get. A graduate of Harvard, the offspring of Abram Chayes, and Antonia Handler Chayes, both luminaries of the academic and political Left, she had a career as a reporter for The Christian Science Monitor and National Public Radio. Under Obama she was a special assistant to the Chairman of the Joint Chiefs of Staff. Her credentials and background therefore make her opinion piece in the Los Angeles Times of special interest. In that opinion piece she argues that the Mohammed video would not be worthy of constititutional protection because it is meant to be purely offensive and intended to provoke a violent reaction. It therefore constitutes the equivalent of yelling fire in a crowded theater:
While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. “Based on my understanding of the events,” 1st Amendment authority Anthony Lewis said in an interview Thursday, “I think this meets the imminence standard.”
Finally, much 1st Amendment jurisprudence concerns speech explicitly advocating violence, such as calls to resist arrest, or videos explaining bomb-making techniques. But words don’t have to urge people to commit violence in order to be subject to limits, says Lewis. “If the result is violence, and that violence was intended, then it meets the standard.”
Indeed, Justice Holmes’ original example, shouting “fire” in a theater, is not a call to arms. Steve Klein, an outspoken anti-Islamic activist who said he helped with the film, told Al Jazeera television that it was “supposed to be provocative.” The egregiousness of its smears, the apparent deception of cast and crew as to its contents and the deliberate effort to raise its profile in the Arab world a week before 9/11 all suggest intentionality.
The point here is not to excuse the terrible acts perpetrated by committed extremists and others around the world in reaction to the video, or to condone physical violence as a response to words — any kind of words. The point is to emphasize that U.S. law makes a distinction between speech that is simply offensive and speech that is deliberately tailored to put lives and property at immediate risk. Especially in the heightened volatility of today’s Middle East, such provocation is certainly irresponsible — and reveals an ironic alliance of convenience between Christian extremists and the Islamist extremists they claim to hate.
Interesting that she trots out Anthony Lewis to shore up her argument. Lewis, now 85 and retired, was for decades the uber Liberal’s uber Liberal at the New York Times and regarded as a First Amendment absolutist. Unless he is now in his dotage, one can only assume that, like many on the Left, his dedication to free speech ends when he disagrees strongly enough with what is being spoken.
The argument that Sayes is making is an old one. It is called the Heckler’s Veto, and it has been used throughout American history to argue that speech should be suppressed because of the violent reaction it might cause. Liberals, back when they were truly liberal, use to fight against it. Lately they have embraced it, most notably in erecting bubble zones around abortion clinic, and banning pro-life protesters from those zones. In the case of Christopher v. Hill, 530 U.S. 703 (2000), the Supreme Court upheld such zones 6-3. The scathing dissent of Justice Scalia is instructive:
The Court today concludes that a regulation requiring speakers on the public thoroughfares bordering medical facilities to speak from a distance of eight feet is “not a ’regulation of speech,’ ” but “a regulation of the places where some speech may occur,” ante, at 14; and that a regulation directed to only certain categories of speech (protest, education, and counseling) is not “content-based.” For these reasons, it says, the regulation is immune from the exacting scrutiny we apply to content-based suppression of speech in the public forum. The Court then determines that the regulation survives the less rigorous scrutiny afforded content-neutral time, place, and manner restrictions because it is narrowly tailored to serve a government interest–protection of citizens’ “right to be let alone”–that has explicitly been disclaimed by the State, probably for the reason that, as a basis for suppressing peaceful private expression, it is patently incompatible with the guarantees of the First Amendment.
None of these remarkable conclusions should come as a surprise. What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the “ad hoc nullification machine” that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice. Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., concurring in judgment in part and dissenting in part). Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong. Because, like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts, I dissent. Continue reading
Francis Cardinal George of the Archdiocese of Chicago is alleged to have predicted that for upholding the teachings of Christ he will die in his bed, his successor will die in a prison cell, and his successor will be executed in a public square in Chicago. Therefore, I am unsurprised that he has written an open letter exploring the “Chicago Values” cited by Mayor Emanuel when he decided to attack the free speech rights of Chick-Fil-A:
Recent comments by those who administer our city seem to assume that the city government can decide for everyone what are the “values” that must be held by citizens of Chicago. I was born and raised here, and my understanding of being a Chicagoan never included submitting my value system to the government for approval. Must those whose personal values do not conform to those of the government of the day move from the city? Is the City Council going to set up a “Council Committee on Un-Chicagoan Activities” and call those of us who are suspect to appear before it? I would have argued a few days ago that I believe such a move is, if I can borrow a phrase, “un-Chicagoan.”
The value in question is espousal of “gender-free marriage.” Approval of state-sponsored homosexual unions has very quickly become a litmus test for bigotry; and espousing the understanding of marriage that has prevailed among all peoples throughout human history is now, supposedly, outside the American consensus. Are Americans so exceptional that we are free to define “marriage” (or other institutions we did not invent) at will? What are we re-defining?
It might be good to put aside any religious teaching and any state laws and start from scratch, from nature itself, when talking about marriage. Marriage existed before Christ called together his first disciples two thousand years ago and well before the United States of America was formed two hundred and thirty six years ago. Neither Church nor state invented marriage, and neither can change its nature.
Marriage exists because human nature comes in two complementary sexes: male and female. The sexual union of a man and woman is called the marital act because the two become physically one in a way that is impossible between two men or two women. Whatever a homosexual union might be or represent, it is not physically marital. Gender is inextricably bound up with physical sexual identity; and “gender-free marriage” is a contradiction in terms, like a square circle. Continue reading
Hattip to Ed Morrissey at Hot Air. I guess some public schools must not be quite clear on the First Amendment. Jerry Buell is a 22 year veteran social studies teacher at Mount Dora high school in Florida, and he was teacher of the year for his school district in 2010. However, after offending the gods of political correctness, he will not be in the classroom when school begins this year. On July 25, 2011 he posted these comments on his Facebook page:
“I’m watching the news, eating dinner when the story about New York okaying same-sex unions came on and I almost threw up. And now they showed two guys kissing after their announcement. If they want to call it a union, go ahead. But don’t insult a man and woman’s marriage by throwing it in the same cesspool of whatever. God will not be mocked. When did this sin become acceptable?”
“By the way, if one doesn’t like the most recently posted opinion based on biblical principles and God’s laws, then go ahead and unfriend me. I’ll miss you like I miss my kidney stone from 1994. And I will never accept it because God will never accept it. Romans chapter one.”
The school district suspended Buell because they are afraid that a homosexual student might be frightened or intimated by him. Go here to see a video report of this farce.
In yet another effort to remain relevant to our political discourse, David Frum is partnering with William Galston to launch a new project that is sure to to revolutionize politics in much the same way the New Majority Frum Forum has. It’s called “No Labels,” and I’ll let Frum describe it:
On Dec. 13, more than 1,000 citizens from the 50 states will convene in New York to change the odds. They are founding a movement – No Labels. Among them will be Democrats, Republicans and independents who are proud of their political affiliations and have no intention of abandoning them. A single concern brings them together: the hyper-polarization of our politics that thwarts an adult conversation about our common future. A single goal unites them: to expand the space within which citizens and elected officials can conduct that conversation without fear of social or political retribution.
Their movement rests on the belief that the real American majority wishes to reassert control over a political system mired in brain-dead partisanship. Those traveling to New York are going at their own expense. No Labels is gaining a thousand fans on Facebook each day. Citizens across the country are asking how they can get involved.
Frum is discouraged by our current political discourse and wants to turn things around:
Our political system does not work if politicians treat the process as a war in which the overriding goal is to thwart the adversary. At a time of national economic emergency, when Americans are clamoring for positive action, our government is routinely paralyzed by petty politics. Through the summer, as the economy teetered between recovery and stagnation, the Federal Reserve lacked a quorum because a single Republican senator took it upon himself to block Obama’s appointments. Republicans were only doing unto the Democrats as the Democrats had done unto them: In January 2008, as the country geared up for an epoch-making election, the Federal Election Commission lacked a quorum because one Democrat had put holds on President George W. Bush’s nominees.
Nor does the political system work if politicians treat members of the other party as enemies to be destroyed. Labeling legitimate policy differences as “socialist” or “racist” undermines democratic discourse.
Frum is understandably concerned. Continue reading