David R. Henderson  

Freedom of Speech: True and False

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But, as a number of commentators (including conservatives) have pointed out, the First Amendment is irrelevant to the Duck Dynasty imbroglio for a very different reason. While constitutional protections for speech certainly extend to bigots, they protect only against government actions, not sanctions by employers. There is no inalienable right to be on A&E.
This is from Cathy Young, "'Duck Dynasty' Pits Free Speech Against Shifting Cultural Taboos," December 26.

That's a nice statement of the issue. If A&E did the extreme thing and took "Duck Dynasty" off the air, there would be no violation of freedom of speech. Freedom of speech means simply that the government cannot use force against you for speaking. If a private person used force against you for speaking, we probably would not call it a violation of freedom of speech: we would call it assault.

So when various social conservatives attack A&E for violating the freedom of speech of the participants on "Duck Dynasty," they're barking up the wrong tree.

So far, so good. But then Ms. Young goes off the rails. She writes:

Take the American Family Association, which charges that A&E "believes in freedom of speech...only if it is the speech content with which they agree." But so does the AFA: boycotts directed against "immoral"--and, specifically, gay-friendly--content have been practically its bread and butter. In 1997, the group fought to stop ABC from having the lead on "Ellen" come out as a lesbian. L. Brent Bozell of the Media Research Center, another vocal critic of the alleged Duck Dynasty persecution, supported both the "Ellen" boycott (the MRC took out a full-page ad in Variety condemning the "blatant attempt by Disney, ABC and 'Ellen' to promote homosexuality to America's families") and that of "Nothing Sacred," a 1997-1998 ABC show that angered conservative Catholics by portraying a priest who struggled with his faith and questioned Church teachings on sexuality.

It's possible that the American Family Association believes in freedom of speech only if it agrees with the content. But then why didn't Ms. Young give us any evidence for that? This would have been the paragraph in which to present that evidence. The only evidence she points to is boycotts, that is, people organizing a voluntary action, namely, a group decision not to buy. There's no use of force and there's no advocacy of the use of force. Now, if, for instance, the AFA had gone to the FCC to try to get that government agency to prohibit ABC from making its choices on the "Ellen" show, that would have been evidence that the AFA does not support freedom of speech.

Note what I'm not saying. I'm not saying that the AFA hasn't advocated censorship. I am saying that Ms. Young, while claiming that AFA is against freedom of speech, gives zero evidence for it.

Ms. Young also writes:

Kissel believes that if a private employer's action "serves to shut out a voice that otherwise would have been heard, this choice is morally suspect." Reason magazine senior editor Brian Doherty makes a similar argument: while censuring unpopular speech through social ostracism and economic boycott may not be un-libertarian, it's deeply illiberal and contrary to the spirit of tolerance that makes society flourish.

I disagree with Kissel, Doherty, and, presumably, Young. Whether it's morally suspect depends on the voice that is shut out. What if an employer had an employee who came to work with a Hitler or Mao t-shirt and pushed Naziism or Communism on customers. I would certainly want to fire that employee. Kissel, Doherty, Young, and I all agree that the employee's freedom of speech isn't violated. But, contrary to them, I don't see anything "morally suspect," "deeply illiberal," or "contrary to the spirit of tolerance" in that action.


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CATEGORIES: Economics of Crime



COMMENTS (22 to date)
Alan Shields writes:

I think Cathy Young's argument is correct. Stated another way it becomes more clear what she's drawing contrast to:

The AFA defines A&E terminating a cast member on Duck Dynasty for his statements as contrary to "freedom of speech".
The AFA has organized boycotts and advertising campaigns urging networks to terminate cast members and programs for statements.

Cathy Young argues both that the AFA is incorrect on the definition of "freedom of speech" and that the AFA inconsistently values "freedom of speech" as the AFA defines it.

Joseph Cooch writes:

Your post needs clarification; specifically, your last paragraph. The second sentence of your last paragraph caught me off-guard. Maybe I misread it, but, to me, the sentence taints the entire post, and nothing in your post does anything to clarify.

For me, it’s easy to reject those who advocate Nazism, Communism, homophobia, or racism. But the second sentence of your last paragraph sets the theme for the entire paragraph; a theme that is troubling.

Some voices are easy to shut out, perhaps because they are so ridiculous, maybe because of their bigotry or because they advocate Nazism or Communism. But at what point do those voices become less ridiculous. In economics terms: What happens to that “morally suspect . . . voice that is shut out” at the margin? Your post suggests that it’s easy to identify those voices and demand their firing. I wonder if that is so.

Also, who is the employer and who is the employee? More important, who is the customer? What if the employer is the university and the employee is the professor, and the customer is the student? Who is the person who gets to decide that the voice that they are being fed is ridiculous? The employer, the employee, or the customer?

Alex Godofsky writes:

Just because it is sometimes fine for private entities to suppress speech doesn't mean that it's always OK, or that it's never illiberal. Most of the traditional arguments for free speech apply with some force against private censorship as well.

Eric Evans writes:

I'm not sure Cathy's characterization of Doherty's position is entirely accurate, thus I don't think your counterexample necessarily captures the spirit of what he's saying.

Here's a possible rephrase: What if an employer had an employee who, while not bringing up his Communist political beliefs specifically in the workplace, had certain mannerisms that pretty much implied what his political beliefs are. During his employment he was active in his political beliefs outside of work. One day at the local Starbucks he made a scene while arguing in favor of some horrendous political ideas with another patron, and a third party captured the scene on their phone and uploaded the video to YouTube. The video went viral, and now some special interest groups are publicly denouncing what he said and demanding that you fire him.

Would you still wish to fire him so quickly, if at all? I'm also curious if you think situations like these have any implications towards the notion of corporate social responsibility, of which you have some reservations.

to Joseph Cooch, Alex Godofsky, Eric Evans:
The central issue of morality, for many libertarians, concerns coercion. If a state limits speech through enforcement of a government law, that involves coercion. We disapprove of that as immoral because coercive. But if a Ford dealer fires a salesman who tells customers the virtues of Chevrolets, that is not coercion.

SJ writes:

The debate about freedom of speech is a sideshow, ultimately. Most people understand that a private business can impose restrictions on its employees without violating the First Amendment.


The really significant takeaway from this is that large, mainstream organizations now fire people for publicly agreeing with Christian doctrine. Given the historical importance of Christianity in this country, that is stunning.

Curtis writes:

The media all around has done a horrible job with this story. What gets me most is how the media has paraphrased Phil Robertson. What they say he said is not what he said. I've forgotten some of the most egregious offenses, but when reading his actual words and then reading what the reporter says they mean, it really points to how low quality our news outlets have become.

Jody writes:

I find the real issue to be one of tolerance and find it deeply ironic / disturbing that those claiming to be working towards diversity are intolerant.

Hazel Meade writes:

I don't think Cathy Young's argument is that AFA's boycotting actions violate freedom of speech principles. I think her point is that AFA is being hypocritical by calling A&E's actions a violation of freedom of speech rights, while simultaneously advocating the same kinds of actions when it suppresses speech they don't like.

Alex Godofsky writes:

Richard Hammer:

The central issue of morality, for many libertarians, concerns coercion.

Observably false.

Yes, libertarian political ideology is focused on a state without coercion. But people aren't states! There are lots of things people do as non-state actors. Libertarians, as individual humans, have all kinds of strong opinions on 'right and wrong' in those situations. For instance, I suspect David would consider it a bad thing to go around making fun of homeless people; he would find such activity morally objectionable even if he didn't think it should be illegal.

Art Carden writes:

I think a subtler reading of Young's point is appropriate. She's allowing the AFA their idiosyncratic definition of "Freedom of Speech" and then showing that their actions are inconsistent with it.

Andrew writes:

In the last two years we have established that I have a right to force my employer to provide birth control so it's not that far of a leap to have a right to free speech include being free from losing my job because of my speech.

David R. Henderson writes:

@Joseph Cooch,
Some voices are easy to shut out, perhaps because they are so ridiculous, maybe because of their bigotry or because they advocate Nazism or Communism. But at what point do those voices become less ridiculous. In economics terms: What happens to that “morally suspect . . . voice that is shut out” at the margin? Your post suggests that it’s easy to identify those voices and demand their firing. I wonder if that is so.
At no point did I suggest it was easy. I simply gave a counterexample to Cathy Young’s point. She didn’t hedge. She didn’t say there are some cases that are morally suspect. In quoting Kissel especially, she seemed to take his side and generalized. A counterexample is just that.
@Eric Evans,
Would you still wish to fire him so quickly, if at all?
I don’t know. Not enough detail given. See my reply to Joseph Cooch above. A counterexample is a counterexample, not a generalization.
@Hazel Meade,
I don't think Cathy Young's argument is that AFA's boycotting actions violate freedom of speech principles. I think her point is that AFA is being hypocritical by calling A&E's actions a violation of freedom of speech rights, while simultaneously advocating the same kinds of actions when it suppresses speech they don't like.
Possibly, but then she should have said that. The paragraph I quoted, and I didn’t quote out of context, doesn’t say that. Here’s how she could have written a key clause in that paragraph:
"But so does the AFA, according to its own strained understanding of freedom of speech:”
@Art Carden,
I think a subtler reading of Young's point is appropriate. She's allowing the AFA their idiosyncratic definition of "Freedom of Speech" and then showing that their actions are inconsistent with it.
See my reply to Hazel Meade.

David R. Henderson writes:

@Alex Godofsky,
Just because it is sometimes fine for private entities to suppress speech doesn't mean that it's always OK, or that it's never illiberal.
True. We agree.
Most of the traditional arguments for free speech apply with some force against private censorship as well.
If you restated that sentence to replace “private censorship” with “private suppression” and replaced “Most” with “Some,” I would agree. It’s impossible for private entities to censor. As I noted in my post, "If a private person used force against you for speaking, we probably would not call it a violation of freedom of speech: we would call it assault."

Seth writes:

I've noticed folks on both sides can be inconsistent in their application of the 'freedom of speech' defense.

There was a recent example of a university professor tweeting something about the children of NRA members that many took offense to and I heard anti-gun folks invoke the 'freedom of speech' defense to say the prof shouldn't be fired. If the university fired that prof, would that be a freedom of speech issue since the university is public?

Though, I think there is a further nuance, it's a state university. Does 'freedom of speech' in the US Constitution also apply to state governments and sub-units of the state (since the university isn't really a part of the state government other than as a budget item)?

Then, with Robertson, I heard the same people who invoked 'freedom of speech' with the university professor suddenly come to understand that 'freedom of speech' doesn't necessarily mean freedom of consequences from private actors (termination, boycotts, etc.).

Unfortunately, this flip-flopping seems to take up about 85% of the discussion. Which, may be by design, because without it there may not be much discussion.

Arthur_500 writes:

Many years ago I wrote an editorial stating that Anwar Sadat deserved the Nobel Peace Prize for all he risked but Mr. Begin risked nothing and therefore didn't deserve to share the prize. (I received death threats for this opinion)

The next day at work I was brought into a private space and asked not to use my name in future editorials. It was made clear that I had a right to my opinion and a right to participate in the public discussion outside of work. However, they wanted to make sure that my personal opinions would not become an issue for the company and requested that in the future I request my name be withheld.

I felt that was certainly reasonable. Today most publications will not allow the name to be withheld.

However, all the rules change when you become a public figure. Remember Tim Tebow? Somehow most people didn't really care about his religious belief. But today I walk into Wal*Mart and Duck Dynasty faces are on clothing, sheets, toys, car accessories, etc. Now the company - A&E - has a real problem in that their business is being associated with the personal beliefs of one of its employees.

What about the actor who was drugged out of his mind and caught with prostitutes? He got fired (Charlie Sheen?) because it made the network look bad. He was bringing in lots of money for them but they didn't like the bad publicity.

I do believe that we have become so sensitive to the ire of the political left that we are too politically correct to voice a real opinion. That censorship requires the backbone of the private sector to stand up to those voices of intolerance. But I have not seen much actual government censorship other than the coverage of the White House that has been clearly documented and no one seems to care.


Eric Evans writes:
Now the company - A&E - has a real problem in that their business is being associated with the personal beliefs of one of its employees.

Given the fact that they've tried to shut down the prayer and the mention of Jesus at the end of every episode several times, and even went to the trouble of scheduling a new "progressive" show after it (Modern Dads, which was a ridiculous flop), I don't think A&E gets a presumption of innocence on this point. They knew exactly what they were making their money off of.

Brian writes:

"Take the American Family Association, which charges that A&E "believes in freedom of speech...only if it is the speech content with which they agree." But so does the AFA: boycotts directed against "immoral"--and, specifically, gay-friendly--content have been practically its bread and butter."

Even if we take the best interpretation in Cathy Young's favor, offered by some posters, that she is merely pointing out hypocrisy on the part of AFA, her point is still false.

The essential distinction she is missing is that AFA is an advocacy group. Boycotts and similar actions are among the ways they advocate for their favorite positions.

A&E is NOT an advocacy group, or at least would claim not to be, so we are justified in expecting them to be nonideological in how they apply their standards on suspensions and firing. They have the right, as any business does, to protect their business interests, but there's no indication that Robertson's comments did or could have any effect on their business. Quite the opposite, suspending or canceling Duck Dynasty over this would cetainly cost their bottom line more than keeping the show.

Considering, then, that A&E's actions are likely CONTRARY to their business interests, it is clear they are being ideological in a case where it is inappropriate and AFA is right in calling them on it.

Of course, David is also correct that Cathy Young provides no evidence for her charge--I see no good reason to interpret her words the way some have.

John T. Kennedy writes:

David,

Young simply made a small error. If she'd replaced "But so does the AFA" with "The AFA engages in the same behavior" she'd have made her point without implicitly making the incorrect assertion about freedom of speech that you're pointing out.

It seems clear to me that the latter was her intent, and she just goofed.

Brian writes:

As a followup to my previous post, I'll note that A&E has now announced that they will resume filming with Phil Robertson. Basically this is an implicit admission that the suspension was unjustified and that AFA's criticism was basically correct.

Floccina writes:

I am OK with A&E firing anyone they want for any reason. What is more difficult to understand is why a Democrat would be OK with A&E firing someone due their religious beliefs. Phil's beliefs are within normal religious beliefs and do not effect his work at all so A&E fired him because of his religion. Funny that Democrats are OK with that.

Brian writes:

"I am OK with A&E firing anyone they want for any reason."

Except you shouldn't be. I suspect that the Robertsons signed an extensive contract with A&E for doing the show. The contract probably lays out in detail the conditions under which the contract can be terminated. You should not be OK with A&E violating a legal contract.

If I had to guess, I would say the suspension was probably a breach of contract unless A&E interpreted Phil's comments in an extreme way far beyond what most people accept. I further suspect that they had no legal option other than to reinstate Phil because their interpretation of his comments was ideologically driven and not legally supported.

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