Misunderstanding the First Amendment

I’ve had some version of this conversation quite a few times in recent months, focused almost exclusively on two specific examples. For what it’s worth and interestingly enough, these conversations have themselves occurred almost exclusively with a self-identified “conservative.” The two scenarios are 1) HGTV’s May decision to drop a planned home renovation show spearheaded by two brothers, David and Jason Benham, due to their outspoken views condemning homosexuality, and marriage equality. David has been recorded affirming his belief that “homosexuality and its agenda [are] attacking the nation” and represent “demonic ideologies tak[ing] our universities and our public school systems” while comparing opposition to marriage equality to resisting the Nazis; 2) the issue du jour, the NBA’s decision to force the Sterling family to sell the Los Angeles Clippers franchise due to recordings made of 50% owner Donald Sterling’s racist rants against African-Americans (and bizarrely enough, Magic Johnson in particular). 

The argument in each case takes the same track: my interlocutor will assert that in the first case, the “liberal media” is attempting to destroy Christianity by violating the First Amendment rights of these two men to believe what they want and to be vocal in affirming their beliefs; in the second instance, the assertion is that Mr. Sterling’s First Amendment rights are being abrogated because he is being penalized and stripped of his private property due to the dictates of political correctness. While each complaint seems steeped in a deep-seated paranoia, what matters more with regard to what tattered remains of intelligent civil discourse we still cling to is the egregious misunderstanding of the manner in which the First Amendment and private contracts work. That misunderstanding only provides fuel for conspiracy theories and persecution complexes that undergird that unique form of American paranoia that has resulted in tragedy so many times in our history.

And really, it isn’t even complicated. In both cases, the individuals whose rights were allegedly brushed aside had signed contracts with private entities in which they agreed to abide by the terms of the contract. If the Benham brothers’ political outspokenness violated the terms of the contract signed with HGTV (as HGTV asserted it had), then HGTV has every right to declare the contract null and void. The issue has nothing whatsoever to do with the content of their particular beliefs, only that the manner in which they presented them publicly violated the terms of the private contract they had voluntarily signed. No persecution, no liberal witch-hunt, just good old-fashioned contract law between two parties assenting to mutually agreed-upon terms. HGTV’s dismissal of their program only reflects the network’s belief that their bottom line would be adversely impacted, given their audience and sponsors, were the Benham brothers to represent HGTV. The Benham brothers were not charged with a crime nor were their rights violated in any way; the Constitution doesn’t guarantee the right to a TV show.

Nor does it guarantee the right to an NBA franchise. I’ve heard the comment expressed many times now — typically in a huffy tone of feigned outrage and disbelief — that the implication is that every owner, coach, player, executive associated with the NBA now has to watch every word they say, lest they be hauled before the tribunal of political correctness. Well… yes. So is it and so has it always been. When they accepted employ by the NBA or agreed to purchase an NBA franchise, they agreed to abide by the terms set forth in the contract making official their employ or franchise ownership. In the case of Mr. Sterling, it doesn’t matter for his relationship with the National Basketball Association that the conversation for which he came under such intense scrutiny may have been recorded illegally (it matters for his erstwhile paramour, who, if charged and convicted for committing a crime should face the full penalty under the law); all that matters is that he confirmed that his was the voice in the recording, that he did indeed make those statements, after which point the only question is whether or not his actions violated his contract with the NBA. The NBA believes that they did, and the NBA constitution provides a procedure for resolving that issue. Mr. and Mrs. Sterling have every legal right to challenge the NBA in a court of law, though the pending sale of the team to Steve Ballmer would seem to rule that out.

In both cases, the individuals involved had every legal right to say whatever they wished to say. Under the First Amendment, they cannot be criminally prosecuted; that would, in fact, be the meaning of free speech. There is, however, an obvious and critical difference between having the legal right to speech and claiming that that right precludes any consequences whatsoever for speech. Namely, if that speech violates a mutual agreement between or among parties codified into a legally-binding contract, the party in violation is subject to the consequences that she or he voluntarily agreed to! The example I like to use is the very simple one of an average Jane or Joe going to work at an average mid-sized company; if, say, that person for whatever reasons just really loathes her or his supervisor and one day just loses it, and calls that supervisor any number of things that you can’t say on network TV, tells them to go to hell, to fuck off, etc., or uses a racial, gender-based, sexual orientation-based slur to that supervisor or a fellow coworker, no one’s going to argue that the First Amendment protects that individual from finding her- or himself promptly unemployed. The reason being… well… because it doesn’t. 

The same logic applies to both the HGTV and the NBA/Sterling scenarios; to argue that the Benhams or Sterlings were illegally persecuted and stripped of their First Amendment rights is to misunderstand profoundly the manner in which the First Amendment — and the Constitution as a whole — functions vis-a-vis private, mutually agreed-upon contracts. 


N.B.: While I think both HGTV and the NBA could have adjudicated the respective cases more transparently, in both instances each organization incontrovertibly acted well within the terms stipulated within the contracts signed by each supposedly aggrieved party. In each instance, I find the viewpoints expressed by those parties to be abhorrent; had, however, their legal rights to express those viewpoints been abrogated, the conversation would be different. Thankfully the law worked as it should, protecting their legal rights to speech while upholding the validity of private contracts. Needless to say, I won’t be shedding any tears at the absence of the Benham brothers from my cable lineup or of Donald Sterling from the National Basketball Association. 

~ by Benji on May 30, 2014.

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