December 26, 2013

Americans seems to be confused about the First Amendment. They have good reason to be, given that pundits, gadflies and even elected officials sworn to uphold it put out a good deal of gibberish about its meaning and application.

(Bill O'Leary/The Washington Post)
(Bill O’Leary/The Washington Post)

When it doubt go to the text: “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.” (Via the 14th Amendment that has now been applied to the states.) You will notice that it does not refer to MSNBC, A&E, CBS Sports, Major League Baseball, retail stores, or other media outlets, including ones with high public visibility. Oddly, however, it does apply to state universities, which regularly ignore it.

The First Amendment is a restraint from the heavy hand of state or federal government that might punish you, deny benefits or otherwise harm you for expressing views. (The list of exceptions and limitations is not relevant here, but all caveats about rights not being absolute apply.) In 18th-century terms it protects the man who owns the printing press from arrest; it does not protect the printer from being fired for declaring his obnoxious views in public.

So, then, no employer is violating the First Amendment for dumping an employee who expresses views contrary to its objectives (e.g. getting a big audience, projecting a family-friend image.) Despite their deep affection for property rights, some conservatives don’t seem to appreciate that a TV program or cable network has every right (contractual limitations, aside) to dump a reality show participant or actor who says things that create a media firestorm. Nor is calling for someone to be dumped (ahem, Martin Bashir) violating someone’s First Amendment rights. Protesters are not the government and they may exercise whatever economic or PR pressure they want to convince the offender’s employer to dump him or her. Likewise, the employer can’t hide behind the First Amendment to justify keeping the offenders on board. No, Mr. A&E executive, you don’t have to “respect Phil Robertson’s First Amendment rights.”

Whenever someone on “their side” pipes up with something offensive, speech crusaders like to present an example of someone from the other side who escaped punishment or got a lesser punishment. This is somewhat daft since the facts of each case are different and, moreover, the demands of the employers are different. A news reporter caught making a snide remark about one candidate  might be canned for breaking the code of objectivity whereas a MLB team wouldn’t  dream of doing the same. Although it is perfectly valid to chide other protesters who only object when the other side’s guy or gal blunders, that generally leads to inane arguments over whether X obnoxious comment is worse than Y obnoxious comment.

Democratic government, political philosophers have told us for a few centuries, depends on virtuous people. The speech episodes suggest both the offenders and the offended are lacking in some important qualities needed to make civil society operate — judgment, empathy, tolerance (on both sides), self-control. We’ve also forgotten that shame — as in you should be ashamed to have a talk show host who talks like that — has its place. As institutions that promote these qualities have deteriorated and self-expression is elevated to the level of virtue, we are forced to look to laws, which are a poor substitute for good character and good manners.

We have become nearly Germanic in our preference for rules, laws and codes to dictate behavior. That perhaps is why people who know better invoke the First Amendment improperly; it is the only way they know to command the moral high ground. It is not enough, I guess, to say, “This guy’s comments about gays and African Americans are just awful and hurtful.” We’ve  gotten away from honest appeals to the better angels of our nature (or of TV executives’ nature) and — shocker! — standards about manners and taste. The baby boomers spent the 1960s tearing down etiquette and social norms only to discover that they are good things to have around.

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.