There wasn’t much for a criminal law blogger to say about the intolerant comments of Phil Robertson, one of the stars of A&E’s “Duck Dynasty.” The reality TV character simply made some terrible statements of the homosexuality-is-bestiality variety, and A&E responded by suspending him.
But then, as she is wont to do, Sarah Palin chimed in with an incredibly annoying and uninformed—yet ubiquitous—retort. She wrote, “Free speech is endangered species; those 'intolerants' hatin' & taking on Duck Dynasty patriarch for voicing personal opinion take on us all.”
I’m sorry to deprive those who defend public speakers for unpopular comments of their most valued piece of ammunition, but this ridiculousness must stop: The First Amendment has nothing to do with non-governmental repercussions for expressions of opinion.
The First Amendment protects free speech—in a way. Here’s what it says:
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.
The Amendment stops Congress from abridging free speech. That means that government, by and large, cannot punish citizens for what they say. (There are exceptions, such as when certain kinds of threats are at issue.) It doesn’t mean that society can’t condemn inane, hateful comments, or that private television networks can’t reprimand their “talent” for making them.
To be fair, Ms. Palin isn’t alone in idiotic First Amendment commentary, even when it comes to the “Duck Dynasty” controversy, or to politicians. Louisiana Governor Bobby Jindal responded to A&E’s decision in part with: “[T]his is a free country and everyone is entitled to express their views. In fact, I remember when TV networks believed in the First Amendment.”
At least in the First Amendment sense, A&E is free to punish Phil Robertson for what he said. Likewise, TV viewers are free boycott “Duck Dynasty.” And all of us are free to criticize those who broadcast their constitutional ignorance.