24 December 2013

Freedom of Speech: Your First Amendment

"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." -Bill of Rights, 1st Amendment
The First Amendment to the Constitution was adopted on December 15, 1791, and it applies to laws enacted by Congress as well as the fifty states through the 14th Amendment. It does NOT apply from one individual to another or one individual to a company/employer.

Here's a very brief understanding of your 'freedom of speech' rights:

  • Political speech is protected: "...freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government." --Justice Brandeis (minority opinion) 
  • Desecration of the flag: You can burn the American flag (though in my personal opinion, you shouldn't): "...if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable." --Justice Brennan, Jr., Texas v. Johnson
  • Commercial speech (speech done on behalf of a company or individual for the purpose of making a profit) doesn't get full protection under the First Amendment. It is more interested in avoiding fraud than anything else. 
  • School speech: Students in school have certain speech rights as well. A school cannot restrict symbolic speech that does not "materially and substantially" interrupt school activities, according to Justice Fortas. "[S]chools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students ... are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State." --Tinker v. Des Moines.
  • Obscenity and pornography is a completely different issue, and their definitions have changed over time. That's a fun topic for another blog. 
  • Defamation (slander/libel): Consists of actionable words that are false, articulated to a third person (whether by writing or in speech), not subject to legal protection, and motivated by malice. The malice standard differs for public figures in that it requires actual malice (knowledge that it was false or with reckless disregard of whether it was false or not).

    In the recent uproar over Duck Dynasty's Phil Robertson's comments and his employer A&E, people have claimed that his first amendment rights have been curtailed. This could not be further from the truth. If you are unfamiliar with the facts, here's a brief recap:

    Phil Robertson, in a GQ interview, expressed his biblical views on homosexuals, sin, and morality. I can't imagine that anyone was surprised that he held these views. He's a very old-fashioned, redneck Southerner, familiar with the Bible. He is not ignorant; he has a Master's Degree in Education. He quoted the New Testament's views on homosexuality and sin. Anyone familiar with the New Testament, again, shouldn't be surprised.

    As a result of his comments and pressure from gay rights organizations, his employer, A&E has put him on permanent suspension. Critics are claiming that Robertson's freedom of speech rights are being crushed by A&E, but they are ignorant of the law. And while Robertson's comments were made on his own time and quoted the New Testament, he still represents A&E, and it is their choice to react (or not react) to his behavior.

    Let me be clear: I have never watched Duck Dynasty. It's not my idea of entertainment. I'm coming at this from a purely ignorant point of view, so to speak. 

    But if someone is going to form an opinion on what should or should not be done in this particular (or similar situation), they should do so with knowledge and fairness

    1. Phil Robertson made his remarks on his own personal time.
    2. In some respect, Robertson represents A&E (as employees represent their employers).
    3. Phil Robertson was closely quoting the New Testament.
    4. Laws do not protect our feelings.
    5. Employers are allowed to do whatever they want when employees behave in a certain way (provided it's not illegal).
    6. This is not a 1st Amendment issue; it's an employment issue.
    In truth, this could have gone either way... Either the way it went OR A&E could have chosen to view Robertson's statements as what they were, his personal religious views (to which people are entitled) and to support his right to hold those opinions. They could have rejected the pressure from outside groups and stood up for each individual's right to possess a personal belief. If they were truly worried about public opinion, they simply could have released a statement saying that Robertson's views do not represent the views of the station, but that they support an individual's right to a personal belief. Done.

    Everyone on this planet is different. That's what makes our society an interesting place! As long as someone's belief and opinion does not infringe on another's rights or safety, that belief and opinion shouldn't be restricted. I shouldn't have to fear or be ashamed of my beliefs. 

    With that in mind, A&E retains the right to do what it wants in response to Robertson's actions, but it shouldn't have been pressured to act one way or another. I understand that perhaps the point of the pressure was to promote tolerance, but instead of doing that, this has instead been a forced silencing of personal opinion and differences to which we are, and should be, entitled. 

    Whether or not each of us agrees with Robertson and the New Testament is irrelevant. 

    If Robertson isn't allowed to have and express his opinion on his own time, what's to stop another group/company/government organization from suppressing our personal belief and opinion (popular or unpopular as they may be)?

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