Speech Is Not Free and Jindal and Palin Are Wrong on Duck Dynasty

firstamendmentInterpreting the First Amendment as a broad guarantee of “free speech” is a lazy mutation of its actual language and encourages erosion of our freedoms in the marketplace of ideas. The most recent example is the protest from some conservatives that A&E violated Duck Dynasty star Phil Robertson’s “free speech” rights by suspending him in the wake of an interview wherein he opined that homosexuality is a sin.

Louisiana Governor Bobby Jindal jibed that he could “remember when TV networks believed in the First Amendment.” Sarah Palin took to social media to lament that “[f]ree speech is an endangered species.”

Jindal and Palin are both mistaken. A&E’s suspension of Robertson does not implicate the First Amendment, which does not in any event guarantee anything called “free speech.”

The First Amendment prohibits Congress – and, via Fourteenth Amendment incorporation, the States – from passing laws that abridge the freedom of speech. It does not preclude private action.

And it says nothing about speech being free.

There is a difference between having freedom under the law to do something, and being sheltered from the private sector consequences of exercising that freedom. The former is freedom of speech. The latter is free speech, in the sense of being without cost or consequence.

The First Amendment guarantees only the former.

The latter would infringe upon every other person’s freedom of association and expression. The marketplace of ideas allows all opinions to be heard – and to be judged. It permits – indeed it presumes – consequences for speech that is disfavored by its audience.

A&E is not an arm of the government. It is a private actor. The First Amendment does not limit its actions. In any case, A&E has not circumscribed Robertsons’ freedom of speech. He remains free under the law to express his opinions.

What A&E has done its exercise its own freedoms – to associate with whom it chooses and to refrain from supporting opinions it disfavors.

Jindal and Palin are sacrificing constitutional principles to political whim.

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