Politics & Policy

Amendment 1 1/2

Is it unconstitutional for Americans to say "Shut Up and Sing"?

They must have a different copy of the Bill of Rights than the rest of us. Maybe theirs has an Amendment One-and-a-Half: One that guarantees celebrities the right to act however they choose–boorish, irresponsible, or just plain dumb–without any repercussions. Action without reaction. A lot of us would like to live that way, but the real world doesn’t work out that way for most of us. Most of us have to live with the consequences of our decisions, good and bad. We have to be careful how many visits we make to the punch bowl at the office Christmas party. But there’s an ever growing “without apology and without a price” cult that hopes to secure the blessings of liberty–and even license–by shaming their critics. And don’t you dare get in their way.

Hollywood’s been leading the way. Whoopi Goldberg makes an off-color–and frankly overused–joke playing on the president’s last name and plays the victim when her employers are not amused. “America’s heart and soul is freedom of expression without fear of reprisal,” she told the New York Daily News. O.K., Whoopi, maybe the government can’t (and shouldn’t) punish you for your churlish conduct, but what about the rest of us?

The Dixie Chicks are shocked when country-music stations–perhaps the last bastion of red-blooded entertainment in this country–decide to put their music on ice for a while to express disgust at their anti-Bush sentiments. You think, Natalie, that those boycotts have no place in the land of free speech? Tell that to the NAACP. They worked pretty well for them in the 1960s battles over civil rights.

Linda Ronstadt gets met with a hail of boos and, according to some reports, a rain of booze from a few drunken casino patrons when she ends her concert at the Aladdin with an ode to Michael Moore. Not to worry. None other than the New York Times editorial page comes to her rescue, opining that Ronstadt’s reception was a violation of her “rights”:

This behavior assumes that Ms. Ronstadt had no right to express a political opinion from the stage. It implies–for some members of the audience at least–that there is a philosophical contract that says an artist must entertain an audience only in the ways that audience sees fit. It argues, in fact, that an artist like Ms. Ronstadt does not have the same rights as everyone else.

The paper of record has it exactly backward, however, seeking to elevate the rights of the performer to some higher plane than the hundreds of people in the audience who probably paid a handsome sum to hear her sing. Why should Ronstadt, Goldberg, or the Dixie Chicks not hear a response to their freedom cries that is just as loud as their overamplified harangues?

In an oft-cited passage, Supreme Court Justice Louis D. Brandeis explained his conception of what’s come to be known as the “marketplace of ideas,” writing that the “remedy to be applied” in response to speech that one finds disagreeable for one reason or the other “is more speech.” If casino patrons offer their opinions to the casino owners, and Ronstadt ends up on her ear as a result, then the marketplace is working well. So too can Slimfast find another spokeswoman who does less-drunken railing at Republicans and more encouraging its customers to lose weight. By seeking immunity from criticism for their political rantings, the entertainer-activists of our day want to empty the shelves at the marketplace of ideas.

If Whoopi and company are looking for role models in the game of rights without consequences, they need look no further than the “abortion without apology” movement, a whole body of feminist thinking that stands for the proposition that women should celebrate their decision to exercise their right to “choose.” A recent New York Times op-ed by writer Barbara Ehrenreich epitomizes the “how dare you” mentality of this movement. In her essay, Ehrenreich first condemns what she views as the media’s refusal to accord proper lofty status to abortion, lamenting Viacom’s decision not to run episodes of a soap opera in which a teenage character (described by her as a “heroine”) decides to have an abortion. She then argues that if women lose their abortion rights, the fault generally lies with “the women who shrink from acknowledging their own abortions.” She chastises women who don’t fully embrace their decision to have abortions and readily acknowledges that her two abortions were “easy” choices, given that, at the time she “was a dollar-a-word freelancer and [her] husband a warehouse worker.”

Ehrenreich’s account–while callously honest–is yet another example of an understanding that the exercise of rights should not exact any cost to the actor–that decisions should not have real-world consequences. Not only should women be free to rid themselves of unwanted children, but they should never have to second-guess that decision again. And damned be he who has the temerity to question another person’s “choice.” The courts have gone a long way toward endorsing this skewed view of rights and responsibilities, telling Americans that they can no longer express collective moral outrage at such practices as abortion, sodomy, or same-sex marriage. Morality, we have been told, has no place in the law–once was a reflection of our collective moral conscience, but no more.

Whatever the proper role of morality as a collective expression of our values in the law, shouldn’t we still have the ability to express those values as individuals? Can’t those who oppose controversial practices and disagree with controversial speech still have something to say about it all? Whoopi says “no,” but don’t you buy into it. Keep shopping at the supermarket of ideas.

Shannen W. Coffin, a Washington, D.C., attorney, is a former deputy assistant attorney general for the civil division of the U.S. Department of Justice. In that capacity, he coordinated the government’s defense of the Partial Birth Abortion Ban Act of 2003 in the three recently completed federal trials.


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