“I can say whatever I want, it’s a free country!” This sentence gets bandied about with some regularity. Based on what my students write in criminal law classes, most people also think it is a true statement. Now that Phil Robertson has so splendidly demonstrated that we can’t say whatever we want without repercussions, it seems like a good time to think about what freedom of speech really means.
Growing up in the 1950’s and 60’s I heard a lot about free speech, but didn’t see much of it. Television was heavily censored. Newspapers wouldn’t print anything the least bit vulgar or politically edgy. The civil rights movement, at least from the side of the activists, was really civil. It wasn’t until the late 60’s with opposition to the war in Vietnam coming to a climax that I saw the full power of the state brought to bear against free speech.
The first amendment to the constitution is straightforward: “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.” What Congress cannot do is make laws that “abridge” freedom of speech. The dictionary definition of abridge as it applies here is to reduce in scope or shorten in duration or extent.
The thing that people seem to miss is that only Congress is affected by the amendment. Over the years the courts and a subsequent amendment have applied the prohibition to government at any level, but it still only applies to government limitations on speech. Employers are not affected, private schools are not affected, private clubs and businesses are not affected. Courts have carved out many exceptions for government, such as for members of the armed forces, but my focus here is on private speech being limited by non-governmental entities.
Phil Robertson figured out how to make a really good duck call and built a nice little business selling them to hunters. When his sons got involved the business grew, branched out and scored a cable reality show, which dramatically increased demand for the duck calls. The show became a breakaway hit, which attracted mainstream media. Phil was interviewed by a writer for GQ Magazine, a publication to which he would not subscribe. The interview took place over a period of time, including time in the woods where Phil is most comfortable.
Phil hit bottom and found Jesus a while back, and is now very religious in a way that takes the plain understanding of the Bible literally and doesn’t question it much further. He has also lived his life in a small Louisiana town that retains American values from the 1950s. In the GQ interview Phil expanded on his thoughts about some of the more modern lifestyles that would be familiar to GQ’s readership.
The Internet exploded with loathing for Phil’s views, followed by another explosion in reaction to the reaction, which generated a reaction to the reaction to the reaction, and so on. The cable TV network that carried the show responded to the first reaction by announcing that Phil would be suspended from the show. This action generated several new waves of reaction.
A theme of the reaction supporting Phil was that we live in a free country with free speech, and how dare the network punish Phil? The truth is that Phil has only contractual rights with the network, not constitutional rights. People are able to complain to the network, and the network gets to make a business decision about how to respond. If Phil thinks the network has breached his contract the courts are available to him, and vice versa. That is all the law and the constitution have to say about the matter.
Supporters of Phil have available all the tools they would have any time a corporation displeases them. They called for a boycott to demonstrate their economic power and the show’s ratings dropped 71.6% immediately. That means that six million people voted against the network with their remotes. Some of those may have been people who did not like Phil’s comments, but his show’s core demographic is assumed not to include many such folks.
This is all to say that once we move away from government limitations on speech, speech is all about economics. You get to say what you want and other people get to decide how to respond. Whenever we open our mouths we make an economic decision. The feelings and values of my employer affect what I post on Facebook. People who don’t connect the two have had a bad time of it.
Speech used to be mostly private. Unless you could get someone to publish or broadcast your words almost no one knew what you said. Now we all have the ability to publish our thoughts to the world. This sudden change has caught many people unaware. My students are theoretically social media savvy, but they make really bad decisions about what to post. The problem is not recognizing that anything posted on the internet may as well be on a billboard. The illusion that “only my friends” will see what I post is naïve and dangerous to one’s future.
Phil made comments that would probably offend a large portion of the GQ readership, a demographic that isn’t very important to him. Thanks to social media, outrage at his remarks became a juggernaut which crushed what he had built. Phil and the other Robertsons will probably come through this episode just fine, but they may not. Speech isn’t free. It is costly even when managed wisely. It might be time to retire the idea that speech is free.
Duane Ruth-Heffelbower, Assoc. Prof. of Peacemaking and Conflict Studies, is an attorney and director of the Center for Peacemaking and Conflict Studies of Fresno Pacific University and its graduate academic programs.