Who’s Abridging What (Updated)

by baldilocks

Two recent “public outrage” issues in this year’s news have demonstrated that many people—even baldilocksconservatives—have the notion that no one may abridge “free speech.”

The only law related to free speech is in the U.S. Constitution, specifically, Article I of the Bill of Rights. Stated therein:

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.

Congress shall make no law abridging freedom of speech. Therefore, if you are not or I am not Congress, we are unable make any law abridging free speech. If a private corporation or a private association is not Congress, it is unable to make any law abridging freedom. Therefore, the 1st Amendment does not address what any parties which are not Congress may or may not do with respect to freedom of speech. Again, none of the parties mentioned in the cases above are Congress, nor are they any other branch of government.  Each case involved something called a contract between private parties.

A contract is a written promise. Contracts can have all kinds of terms, some of which may involve what parties say in public. Other terms can stipulate how a party can react when the other contracting party violates any of the terms. Things like termination and fines are examples of such penalties, and you can bet that both A&E and the NBA listed these things on the contracts they offered to the Robertsons and to Sterling.

Observers are free to give their opinions on what they think and how they feel about these public controversies and their outcomes, but, in the end, it comes down to what was promised contractually and whether any of those promises were broken. If Duck Dynasty fans or A&E fans or NBA fans or even Donald Sterling fans don’t like how these private parties have resolved their contract problems, fans are free to no longer be fans. But, not being Congress, neither A&E nor the NBA have violated Phil Robertson’s or Donald Sterling’s 1st Amendment rights, respectively.

Each entity is free to act according to the terms of their respective contracts. And, you and I are free not to give them our money if we don’t like what they do.

At least for now…

(More on the Donald Sterling topic here.)

AFTERTHOUGHT: A&E fired Phil Robertson for his comments, then re-instated him; the NBA banned Donald Sterling for life. Both A&E and the NBA reacted to the sentiments of their respect core consumers. Business is business.

Juliette Akinyi Ochieng blogs at baldilocks. Her first novel, Tale of the Tigers: Love is Not a Game, was published in 2009; the second edition in 2012. Her new novel, Arlen’s Harem, is due in 2014. Help her fund it and help keep her blog alive!