First Amendment refresher (Duck Dynasty edition)

I don’t really know what “Duck Dynasty” is or who the guy in question is, but that’s not really going to be the point of the post. Other people have already done more than enough to critique his highly problematic comments to GQ, which ran the gamut from revisionist racism to antisemitism to homophobia. I’ll leave it to those folks to tackle the content of the remarks.

I’m more interested in the crazed reaction by some U.S. conservatives to the man’s indefinite suspension from his TV show as a result of his bigoted statements.

In particular, comments from Republican Gov. Bobby Jindal of Louisiana — who seems far too eager to embrace this hateful man as a fellow Louisianan — caught my attention because of how wildly misguided they were. Jindal referred to the suspension as a messed up situation.” He added:

“In fact, I remember when TV networks believed in the First Amendment. It is a messed up situation when Miley Cyrus gets a laugh, and Phil Robertson gets suspended.”

Setting aside the weirdly off-base comparison to tasteless (and appropriative) but not crazily bigoted performance by Cyrus earlier this year, we immediately arrive at the straw man claim implying that TV networks don’t support the First Amendment anymore, but once did.

Let’s cross that argument off right away: the networks are not suppressing someone’s right to be heard — he got heard already, in GQ — and this isn’t a news program breaking news that the powers that be might want held under wraps. It’s an entertainment program and his comments weren’t really in line with the show’s core mission which I presume involves hunting ducks on reality television (or establishing a heritable leadership system based on duck lineages?). So that’s a misdirected argument.

Congress shall make no law

bill-of-rightsAnd now we arrive at the second argument, that the first amendment is being violated by suspending this man for his vile comments. This is, simply put, mind-bogglingly idiotic.

The First Amendment to the U.S. Constitution states:

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.

Curiously, it does not say, “Privately owned television companies must give everyone air time to say whatever they want to, without repercussions, and must not suspend any of their employees for expressing views the network disagrees with.”

Conservatives, Jindal among them, seem hell-bent on trying to convince everyone that “Freedom of Speech” under the Bill of Rights means anyone has the right to say anything, anywhere, at any time, with zero consequences or rebuttal.

Most frequently, of course, we hear this trotted out in opposition to “political correctness” — the closet bigot’s disparaging term for showing a modicum of sympathy toward others’ feelings and life experiences. Despite the extreme comments made by this Duck Dynasty guy, he’s getting the same defensive treatment, even though government is nowhere to be seen in the equation.

For whatever reason, conservatives are under the mistaken impression that if you say something, whether it be factually wrong or socially offensive, no one is allowed to correct you or dismiss you due to the First Amendment. In fact, as is quite obvious from the text of the amendment, the only party restricted from limiting your free speech is the government. Everyone else is free to respond and even punish you, if in a position to do so.

This is not a mistake or loophole. This is very intentional in the design of the amendment and its subsequent interpretation by many a Federal jurist.

Balancing act

There are essentially three factors to be balanced on the issue of freedom of expression in any scenario. It’s impossible to accommodate all three fully, and so we weigh them against each other, as a society, for both general purposes and specific cases. These factors are:

  1. Your ability to express your belief/opinion
  2. Your expression’s security consequences
  3. Your expression’s consequences for other people’s rights

The first factor is always present. Usually only one of the other two is a major consideration at a time, in specific cases.

The second is pretty self-explanatory. It’s the one about whether government can restrict your expression/speech if it will endanger the public. We weigh that factor based on how immediate the threat is, what kind of danger would arise from it, etc.

While it’s not very common here in legal cases, other liberal democracies have placed great weight on the third point. Europe, for example, has many laws against hate speech. The premise is that hate speech does not occur in a vacuum, but rather within a cultural context, and is very damaging — mentally, emotionally, etc. — to the targeted population. Hate speech, by this reasoning, is thus an infringement of the rights of others to be left alone and not be psychologically abused by horrible bigots constantly.

Therefore, those societies have empowered their governments to restrict freedom of speech in the areas of hate speech and other inflammatory categories. They believe that government is the best vehicle for curbing such speech and maintaining social harmony.

Marketplace of ideas

In contrast, the United States has developed a much more libertarian approach to freedom of speech, based on the 18th century ethos of the Framers. They believed in concepts like the marketplace of ideas, where viewpoints could be traded on a free exchange. Early concepts from Adam Smith’s late 18th century work on the study of economics and trade came to be seen as apt metaphors for how ideas circulate.

So just like competition allows some providers of goods & services to rise to the top in real markets, the libertarian view on speech says that the best solution to problems like hate speech is to let it compete freely with counter-speech — rather than government intervening as regulators — and the rationality and supremacy of less horrid counter-speech will prevail.

Thus, if the public responds angrily to some idiot’s hateful comments, this is not an infringement of free speech. It is the system “working” according to the American principles of how the intellectual free market is supposed to work.

In pure free market economics, if people vote with their wallets against one company’s product, it’s meant to fail. Likewise, if people vote with their wallets against a TV network keeping someone on the air and the network pulls that person, it means that that person has failed. The free market has spoken.

Saying that a network shouldn’t pull someone for expressing hate speech because it’s counter to American ideals of freedom of expression is completely wrong. Saying it’s counter to the First Amendment is just totally irrelevant as well as being wrong.

The system worked

We can and should have a debate at some point about whether our “marketplace of ideas” approach to hate speech is really the best course — it does take a pretty severe toll on the minority and disempowered populations who take the brunt of the hate, in contrast with the comfortable intellectual exchange between unoppressed white, straight, cis males — but for the moment, this is the system we have and, in this case at least, it more or less worked as intended.

But it only works if the public is allowed to do its job and shoot down and de-fund terrible hatemongers to punish them for their views. When someone gets suspended or fired by the private sector for expressing hateful views publicly, that’s the outcome we’re supposed to see. That’s not a “messed up situation.” That’s the enforcement mechanism.

Freedom of speech in the United States just means the government (usually) can’t tell you to be quiet. It has never meant freedom to say stupid things without consequences.

You have right to remain silent, but your hips won’t lie

In a little-noticed decision in Salinas v. Texas (2013), the Supreme Court just ruled that your right to remain silent to avoid self-incrimination can be voided by your body language. If it seems “suspicious” and you don’t explicitly declare that you’re invoking the 5th amendment, then your unconscious body language during interrogation or questioning can be used against you in court.

A very good observation from the comments at The Volokh Conspiracy:

The problem is that in the eyes of the police and prosecutors almost anything the defendant–the person they believe is guilty–says and does after the crime and during interrogation becomes evidence of guilt, even opposite reactions by different defendants. He was silent; he wouldn’t stop talking. He went out and got drunk with friends (he partied) after the murder; he showed no emotions and took off away from everyone after the murder. He appeared very nervous; he seemed to be very in control of himself. He appeared to be crying but shed no tears; he was shedding tears but a few minutes later he was smiling. It’s a fool’s game.

On Miranda Warnings

This weekend, following the national drama of the Boston Marathon Bombings and metro area manhunt for the culprits, I’ve reposted & added notes to old posts on handling/prosecuting terrorists in the United States.

I wanted to add a note about Miranda Warnings because there’s been some hysteria over the fact that Suspect Number 2, who was taken alive, had not been “Mirandized” (read the standard notification of his legal rights under the Constitution and Bill of Rights) on the grounds of a “public safety” exemption to the Supreme Court-mandated advisory. First off, it bears repeating that there are no such things as “Miranda Rights.” This is a common misnomer. The rights, as mentioned above, come from the Constitution and the Bill of Rights. They were not invented by the Supreme Court’s Miranda v. Arizona decision in 1966; the court just established guidelines for a succinct set of warnings in an advisory to those being arrested so that they don’t later try to get their conviction thrown out because they weren’t notified of their right to have an attorney present and their right not to self-incriminate. Those four warnings are the ones you hear on television all the time, beginning with “You have the right to remain silent.”

Second and more importantly, he is not losing rights and no one is trampling on the Bill of Rights because the administration has invoked a “public safety” exemption and skipped the reading of the warnings. As I understand it — the “public safety” exemption on Miranda Warnings does not mean that the government will be prosecuting based on evidence obtained by statements made prior the warnings, so rights are not infringed. They usually use the exemption when they already have plenty of evidence — in this case a video has now surfaced of Suspect Number 2 placing one of the marathon bomb backpacks and walking away … so he’s going to jail no matter what he says or doesn’t say to investigators — rather they use the exemption when they want/need to find out quickly about other stuff they don’t already know. For example — they skip the warning of the right to remain silent so that they can ask if there are other bombs set to explode later or if there are other affiliated terrorists in the area. If he admits to having placed other bombs and they haven’t read him his rights, they probably can’t use that as evidence for further convictions, but they can at least find and disarm them. And at any rate, they still can’t compel the person to answer just because they didn’t officially read them their rights. Similarly, if they ask for a lawyer without prompting, the interrogation stops until a lawyer arrives. (This happened in January 2009 with Umar Farouk Abdulmutallab, when he was not Mirandized, after attempting to blow up a plane to Detroit in front of hundreds of witnesses.) Your rights remain whether or not you are advised of them. Not providing Miranda Warnings doesn’t take away rights and it can actually hinder prosecution later — so the exemption is used sparingly to obtain urgent information for public safety not to obtain new evidence for trial.

I also find it hard to believe that a 19-year-old who grew up in American culture wouldn’t know the Miranda Warnings from television — even Chief Rehnquist’s 2000 decision upholding Miranda v. Arizona that he originally opposed noted that the warnings had “become embedded in routine police practice to the point where the warnings have become part of our national culture.” He is in all likelihood well aware of his rights even if they don’t mention them. And that’s all the Miranda Warnings are: a brief mention of your rights under the law & Constitution. The rights themselves don’t change or disappear if the warnings are modified or skipped.