The First Amendment Does Not Protect Your Stupid, Bigoted Idea from Being Criticized
I want to return to a subject that I’ve discussed before (see Freedom of Speech Just Isn’t That Complicated (and other notes about Hank Williams Jr.) and What the First Amendment Doesn’t Mean). Due to current events, the issue is once again relevant. The flap over the comments by Dan Cathy, the president of Chick-fil-A have led to people expressing their reactions with grave misunderstandings of the freedom of speech guaranteed by the First Amendment. So, before getting into what people are getting wrong, let’s start by reminding ourselves what the First Amendment actually says (I’ve highlighted the relevant portions in red):
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.
It’s really rather simple. But far too many people either don’t understand or do understand but intentionally try to mislead others.
One type of confusion that has been around for a long time, but which is somewhat understandable (I guess), is the failure to understand that an individual or business cannot violate someone else’s First Amendment rights; only the government can.
But the more pernicious (and seemingly recent) form of “confusion” has to do with the notion that the First Amendment not only protects your right to speech but also somehow requires others to listen and/or protects the speaker from criticism. Wrong on both counts.
I don’t recall ever having heard this sort of misunderstanding of the First Amendment (or lack thereof) until — who else? — Sarah Palin (emphasis added):
If they convince enough voters that that is negative campaigning [claiming that Obama “palled around with terrorists”], for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.
Somehow, Palin thought that her First Amendment rights were in jeopardy if the media was allowed to “attack” her.
Similar claims were made by Hank Williams, Jr. when he was fired by ESPN:
After reading hundreds of e-mails, I have made MY decision. By pulling my opening Oct 3rd, You (ESPN) stepped on the Toes of The First Amendment Freedom of Speech, so therefore Me, My Song, and All My Rowdy Friends are OUT OF HERE. It’s been a great run.
To Williams, ESPN stepped on his First Amendment rights.
Some people made similar arguments that Rush Limbaugh’s First Amendment rights were being infringed upon when advertisers began to jump ship after Limbaugh called Sandra Fluke a “slut” and “prostitute”. Because, you know, the First Amendment requires that people be given $400 million radio programs and that advertisers must continue to advertise no matter the content of the show. And these examples are but the tip of the proverbial iceberg for this sort of misunderstanding.
And now with the Chick-fil-A fiasco, this sort of argument can be seen plastered all over the Internet and Facebook. I can’t begin to count how many posts and tweets I’ve seen that say something like “criticizing Chick-fil-A is taking away their First Amendment rights”. I think that the “best” formulation of the argument I’ve seen so far came courtesy of an editorial (please don’t click on the link and give them any more hits) on the far-right, conspiracy site World
Nut Net Daily by former baseball player John Rocker (yes, the same John Rocker who got suspended for racist and homophobic comments and who admitted to steroid use):
Over recent years, it seems the term “free speech” has become more of an oxymoron than an absolute in our society. Technically, as our Founding Fathers intended, we are all given the undeniable right to voice our thoughts and opinions freely without fear of scorn and/or ridicule derived from non-agreement. I supposedly have the same right to express myself as you do. In a perfect world, my rights should be no different from yours. I’m quite certain that given the current stage of the world’s social climate, however, anyone ascribing to the ridiculous notion that our world is perfect is kidding himself. Our “perfect” world was replaced many moons ago by the defective reality in which we are all forced to reside — and one of the most blatant areas to view the erosion of perfection is seen in the lack of ability many in this great country have to speak freely without fear of chastisement.
Somebody needs to explain to me where the notion that the First Amendment protects ideas from scorn or ridicule comes from. After all, that notion is completely antithetical to the very purpose of the First Amendment. The Founding Fathers understood that for our system of government to be successful, there had to be an open interchange of thoughts (the so-called “marketplace of ideas”) and that the government shouldn’t be able to silence dissenting voices or unpopular opinions.
Key to all of this, of course, is the simple fact that criticism is itself speech that is protected by the First Amendment. In other words, the First Amendment protects whatever stupid idiotic thing you want to say. But it also protects me from telling you that your opinion is bigoted, hurtful, and asinine.
And many people are suggesting, somehow, that someone is trying to “disallow” Chick-fil-A’s point of view. For example, on Twitter the other night, someone jumped into a conversation that I was having with a friend to say (in part, emphasis added):
Isn’t it bigoted to disallow Cathy’s point of view?
Um, who is trying to disallow that point of view? I’ll defend to my last breath his right to say whatever stupid, bigoted, hateful thing he wants. That is the what the First Amendment protects. But I will also use those breaths to criticize his ideas and to shout out better ideas. And I won’t give the restaurant money that it can use to support groups that advocate for things with which I disagree. I will, instead, spend my fast food chicken dollars at a restaurant that supports equality. Or is it least silent.
And for those who think that boycotting Chick-fil-A is somehow infringing on Cathy’s First Amendment right, can you please show me where the First Amendment requires me to buy a chicken sandwich from a particular store? You know, it’s interesting that the right has no problem organizing boycotts of JC Penny for using gay couples in advertisements or in boycotting certain television programs because of their subject matter or getting radio stations to stop playing the Dixie Chicks because they criticized President Bush. But turn that around into a boycott of an issue near and dear to the right and suddenly, whoa Nelly, you’ve violated the Constitution. And isn’t it interesting to hear the right complain about violations of their rights when the point at issue is the fact that the viewpoint being criticized is the idea that other Americans shouldn’t have certain rights? I’m having a hard time wrapping my brain around the argument that by criticizing your view that others shouldn’t have rights, I’m somehow violating your rights.
I also want to note that I think that it is completely false equivalency between advocating for discrimination and advocating for equality. Those points may both be protected by the First Amendment, but they aren’t equivalent.
Now I will agree that when mayors step in and say that they won’t allow a Chick-fil-A in their town because of the views expressed by the restaurant, then we have gone too far. Probably. I think it’s a bad idea for mayors (or governments) to decide whether a certain business can operate based on its owner’s political views. But I’m not sure it’s necessarily that easy. For example, if the owner of the business wasn’t a homophobe but rather a racist who claimed that blacks were sub-human or that Jews really did drink the blood of Christian babies, might your reaction be different? Would you expect your mayor to work to prevent a business from locating in your community if the owner of that business expressed his support for pedophilia or loudly called for the end of American democracy?
And can I presume that everyone who has been critical of the mayors stepping in (um, aren’t you violating their First Amendment rights … at least according to your warped logic?) has been equally critical of efforts to stop Muslims from erecting mosques in New York or Murfreesboro, Tennessee? After all, the First Amendment does protect freedom of religion; it does not protect freedom to sell chicken sandwiches.
Finally, while this may not be entirely fair, it does make one pause and think: