January 17, 2014
JAMES TARANTO: Free Speech Quackery: The left defends corporations’ rights.
The First Amendment protects speech only against censorship or other adverse action by the government. The latter question refers obliquely to last month’s kerfuffle over “Duck Dynasty” star Phil Robertson, an incident that did not implicate the First Amendment. As to the former question, it’s a bit more complicated. Some people, after all, are employees of the government, and in a series of cases starting with Pickering v. Board of Education (1968), the Supreme Court has afforded them some protection against being fired over protected speech.
Swanson means mostly to make fun of the left’s favorite bogeyman, who defended Robertson; her headline is “Nearly Half of Americans Grasp the First Amendment About as Well as Sarah Palin Does.” Palin had written on Facebook: “Free speech is an endangered species. Those ‘intolerants’ hatin’ and taking on the Duck Dynasty patriarch for voicing his personal opinion are taking on all of us.” Here it seems to us the snark is unjustified: “Free speech” is not only a legal concept, and government is not the only entity capable of stifling free and open debate, even though it is the only entity enjoined against doing so by the U.S. Constitution.
One source of the popular confusion over the First Amendment’s scope may be the ubiquity of antidiscrimination laws. Our guess is that a large number of Americans would answer in the negative if asked whether the Constitution allows people to be fired (or otherwise treated adversely by a private-sector employer) on account of race. In fact, such discrimination is illegal–but pursuant to statutory law, not the Constitution. (One does, however, have a constitutional claim if the government is enforcing laws against racial discrimination in a racially discriminatory way.)
There are no federal laws against discrimination on the basis of political views or expression of protected speech. But as UCLA legal scholar Eugene Volokh noted in a 2012 article for the Texas Review of Law & Politics, “about half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation.” One man who does is Phil Robertson of Louisiana, where the state Supreme Court has held that “the actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings” and is therefore forbidden under state law.
Read the whole thing. Plus: “Implicit in the claim that A&E was within its legal rights in suspending Robertson–which it was, in our view–is a recognition that corporations and not just individuals have the right to free speech. We remember when the left didn’t believe in the First Amendment.” Heh.