David R. Henderson  

Criticism Doesn't Violate the First Amendment

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Over at Hit and Run, Reason's blog, Robby Soave, whose work I normally like a lot, laid an egg. His post is titled "The Real Boobs Are People Who Think ESPN Must Fire Jemele Hill."

You can read his post, which is not long, and figure out all the players.

Here's the paragraph that was off-key:

Travis, Sanders, and Trump all seem to be making the same mistake: the First Amendment does not require ESPN to be politically neutral, or polite, or even-handed. It protects Hill's right to call Trump a white supremacist, and also Travis's right to say "boobs" on television.

Everything after the colon is true. But Robby never makes clear what mistake Clay Travis, a sports radio host, Sarah Huckabee Sanders, the White House Press Secretary, and President Donald Trump are making.

What all three did was criticize ESPN. None of them said, or even hinted, that the First Amendment requires "ESPN to be politically neutral, or polite, or even-handed."

Freedom of speech and freedom of the press are way too important to get wrong. And both freedoms include the freedom to criticize.

By the way, some of the worst comments in the blogosphere are on the Hit and Run site. But, in this case, a number of the commenters nailed it.


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CATEGORIES: Liberty




COMMENTS (9 to date)
Jerry Brown writes:

Can we say 'boobs' in the comments here- you guys are pretty strict about that kind of thing... I guess I will find out soon enough...

[If a blogger uses a term, usually it's okay for a commenter in good standing to use it in similar fashion. Crass, crude, or angry alternative uses, though, may get flagged or removed. The term "boobs" has multiple meanings, eh? Comments that use terms with inherent multiple obscene or inappropriate meanings will likely be checked to verify that the usage does not violate our comment civility policies. There's nothing inherently wrong with most individual words, though. It's all about how you wield the words. --Econlib Ed.]

Tom DeMeo writes:

"None of them said, or even hinted, that the First Amendment requires "ESPN to be politically neutral, or polite, or even-handed.""

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"Sanders doubled down at a Friday press briefing, saying, "ESPN has been hypocritical, they should hold anchors to a fair and consistent standard.""

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I guess you could defend your statement by pointing out that Sanders didn't explicitly cite the First Amendment or reference it in any way.

I don't see your point here. Robby Soave makes it clear that he doesn't see it as a First Amendment issue either.

I think most people just saw the White House Press Secretary as being reckless by calling for a firing of a private citizen for speaking out. There is nothing explicitly wrong with this but since it is so abnormal and since the White House has so many ways to wield power over a media company like ESPN, it feels like an implicit threat.

This is really just another story about the lack of discretion of this administration. This is not a constitutional crisis.

Tom Jackson writes:

Criticism per se does not violate the First Amendment, but if Donald Trump called for David Henderson to be fired from his job as a professor because Trump didn't like this blog, I would not be pleased.

David R. Henderson writes:

@Tom Jackson,
Criticism per se does not violate the First Amendment,
We agree.
but if Donald Trump called for David Henderson to be fired from his job as a professor because Trump didn't like this blog, I would not be pleased.
Thank you. I don’t think I’d be pleased either although I’m not sure. The publicity would be wonderful. :-)

David R. Henderson writes:

@Tom DeMeo,
I don't see your point here. Robby Soave makes it clear that he doesn't see it as a First Amendment issue either.
Really? It’s hard to make my point even clearer but I will try. Robby said that they made a mistake. The following clause seemed to imply that they had a misunderstanding of the First Amendment. But he never showed that they had any such misunderstanding.

Tom DeMeo writes:

@David Henderson

If your point is that referencing the first amendment has become a rhetorically sloppy catch-all for not just the first amendment itself, but a host of other issues related to social norms and controversial speech, then yes you are correct. I apologize for missing your point.

That has always bugged me too, but its so common that I don't even hear it at this point. What I focused on was that Sanders did make a mistake here, and the author did call it out.

I could be wrong, but I think the author really meant "first amendment and related norms dealing with free speech". The first amendment gets invoked this way virtually every time a speech controversy comes up.

There are social norms that affect people who say outlandish things, and sometimes people pay a price for speaking out. However, the norms surrounding a President are different. Our society generally tolerates the harshest speech towards a President, and people are not sanctioned.

American society has never wanted our presidents going around snuffing out angry dissent.

David R. Henderson writes:

@Tom DeMeo
The first amendment gets invoked this way virtually every time a speech controversy comes up.
Yes, and it does get tiresome.
Our society generally tolerates the harshest speech towards a President, and people are not sanctioned.
True. And everyone tolerated it. Toleration simply means you allow it, not that you like it, not that you don’t react negatively, and not that you don’t think people should be fired for saying it.

Hazel Meade writes:

At some point doesn't this all get really circular? Criticising the speech is free speech, and so is criticising the criticism. And so is criticising the criticism of the criticism. At some point, you just have to focus on the original issue, and decide what sort of speech you think should be socially acceptable or not.
If you think it shouldn't be acceptable to say 'boobs' on the air, you're going to be in favor of firing Travis, and if you think it should be unacceptable to call the President a white supremacist, then you're going to be in favor of firing Hill.

So instead of arguing about whether someones' free speech rights are being violated, we should be arguing about what's wrong with saying 'boobs', or why someone should or shouldn't be calling Trump a white surpemacist. That would be a far more productive discussion.

Thomas Sewell writes:

If there is a first amendment issue, then I must be missing something. I don't even think Trump/Sanders House was actually calling for Hill to be fired, but merely pointing out that she would be if her comments were aimed the other direction politically.

The quote "ESPN has been hypocritical, they should hold anchors to a fair and consistent standard." is pretty clear to me.

Trump and Sanders point was that ESPN has a double-standard which leans left. Does anyone really think they care what happens to Hill's job because of Hill herself? The same level of employee statements which would be instant firing offenses if said about Obama are worth only a mild warning if said about Trump.

ESPN has a corporate policy about how their employees are supposed to represent them on twitter, etc... The real history seems to be that if you are on the left, you can a hand slap (or two, this is the second for Hill) and if you are on the right, you get fired even if only because someone was offended by something borderline you said, not if you made an actual blatantly negative comment like this one was.

Even the ESPN Public editor agrees about their hypocritical left-leaning bias, so what's so controversial about the remarks?

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