Huffpost Politics
The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Byron Williams Headshot

Free Speech: Do We Know it When We See it?

Posted: Updated:

In the sophomoric cacophony that masquerades as meaningful public discourse it seems the adventures of the highly rated cable reality show Duck Dynasty has entered the fray.

Phil Robertson, a star of A&E's "Duck Dynasty," has been suspended indefinitely after slamming gays in a magazine interview.

In the January issue of GQ, Robertson said homosexuality is a sin and puts it in the same category as bestiality and promiscuity.

"It seems like, to me, a vagina -- as a man -- would be more desirable than a man's anus. That's just me. I'm just thinking: There's more there! She's got more to offer. I mean, come on, dudes! You know what I'm saying? But hey, sin: It's not logical, my man. It's just not logical," he's quoted as saying.

At the heart of this kerfuffle is whether Robertson's free speech rights were violated.

The fundamental question this episode raises: What is free speech?

The First Amendment states that: "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."

As history bears witness, what defines free speech has been an ongoing struggle for the courts.
Freedom of speech includes the right:

1 Not to speak (specifically, the right not to salute the flag).West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
2 Of students to wear black armbands to school to protest a war ("Students do not shed their constitutional rights at the schoolhouse gate.").Tinker v. Des Moines, 393 U.S. 503 (1969).
3 To use certain offensive words and phrases to convey political messages.Cohen v. California, 403 U.S. 15 (1971).
4 To contribute money (under certain circumstances) to political campaigns.Buckley v. Valeo, 424 U.S. 1 (1976).
5 To advertise commercial products and professional services (with some restrictions).Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
6 To engage in symbolic speech, (e.g., burning the flag in protest).Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).

Freedom of speech does not include the right:
7 To incite actions that would harm others (e.g., "[S]hout[ing] 'fire' in a crowded theater.").Schenck v. United States, 249 U.S. 47 (1919).
8 To make or distribute obscene materials.Roth v. United States, 354 U.S. 476 (1957).
9 To burn draft cards as an anti-war protest.United States v. O'Brien, 391 U.S. 367 (1968).
10 To permit students to print articles in a school newspaper over the objections of the school administration. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
11 Of students to make an obscene speech at a school-sponsored event.Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
Of students to advocate illegal drug use at a school-sponsored event.Morse v. Frederick, __ U.S. __ (2007).

This long, but hardly exhaustive list, manages to still be beyond the jurisdiction of where we find Robertson. Decrying that Robertson's free speech has been violated is nothing more than a public admission to how little one actually comprehends the values they claim to embrace.
However one feels about Robertson's comments to GQ have no bearing on his free speech rights. There is the erroneous temptation to conflate constitutional values with one's personal feeling about the issue.

In this case, when the outcome did not equate with one's personal feelings, Robertson's supporters suggested his free speech was in violation. This fallacious approach, though understandable on the surface, once again demonstrates the ease at which one can claim to embrace American values while demonstrating little corresponding understanding.

The Constitution states that Congress, not A&E, shall make no law abridging freedom of speech. What law was passed that led to Robertson's suspension? Moreover, freedom of speech does not equate to freedom of consequence.

Let's assume someone working for the NAACP stated publicly that Bull Connor, the architect of the police dogs and fire hoses during the 1963 Birmingham civil rights campaign, was right to employ that method of force upon children. Would the NAACP be wrong to suspend that person?

Robertson's speech has not been violated. He is free to make similar statements in the future, but that does not render him immune from consequence.

If Roberston were fired as a result of a government entity applying pressure against A&E because they found his comments objectionable, then his free speech rights would have indeed been violated. But that's not what occurred.

A&E made a business decision to suspend him. Those who oppose that decision can boycott the network and its sponsors or apply any number of methods to display their outrage.

Free speech is not free in the sense that one will pay no price for their actions. It is a safeguard that prohibits government against taking punitive measures against individuals because of language which they may not agree. It says nothing about A&E.