What Free Speech Isn’t

Colin Kaepernick at the Los Angeles Coliseum, December 2016. (Photo: Robert Hanashiro/USA Today Sports/Reuters)
The government cannot punish you for offensive speech, but your boss can fire you.

Two hundred and forty-one years since America’s birth and 226 years since the adoption of the Bill of Rights protecting our freedom of speech, Americans seem to be confused about what free speech actually means. We need a refresher course in what is not free speech, and what it is that speech is free from.

As a free society, we must protect speech in the public square. That’s why the Westboro Church lunatics are accompanied by a sizable police force when they protest military funerals. It is our job as a society to permit speech, even and especially speech we find repugnant, and to protect the speaker from violent reactions to that speech. Additionally, speakers must not face repercussions from the government for what they say. If Donald Trump doesn’t like it when Saturday Night Live makes fun of him, he can tweet about it. He can’t send a police force to arrest Alec Baldwin.

This does not, however, mean that speech comes without consequences. If Westboro Church leader Fred Phelps applied for a job at your company, you would be fully within your rights to turn him down because he is a vile, hateful person whom you do not wish to employ. This general distinction has been difficult for people to grasp in the wake of several recent high-profile incidents.

Last week, Tomi Lahren settled a lawsuit with her previous employer, the conservative network The Blaze. Lahren was fired after an appearance on The View in which she told the audience that she was pro-choice. She had previously proclaimed herself pro-life; her position on abortion is one that matters to both her audience and her (now former) employer. Speaking to Joy Behar and other View co-hosts, she explained:

I’m pro-choice, and here’s why: I am a constitutional — y’know, someone that loves the Constitution. . . . I can’t sit here and be a hypocrite and say I’m for limited government, but I think the government should decide what women do with their bodies.

Of course, her viewers at The Blaze also consider themselves “constitutionals” (if that were a real word), believe in limited government, and yet are pro-life. She called her own audience hypocrites — and then she was fired for it.

Milo Yiannopoulos lost his book deal and resigned from Breitbart when he was criticized for comments he made on a podcast about his sexual relationship, as a teen, with an older man, saying that he did not consider himself a victim at the time. Yes, bad things will happen to your career if you say, as Milo did, that “some of the most important . . . life-affirming, important shaping relationships very often [are] between younger boys and older men.” Upon learning of the comments, which some listeners interpreted as a defense of pedophilia, the Conservative Political Action Conference disinvited Milo as a speaker. This was not a violation of free-speech rights, because a private group is perfectly entitled to invite only people whose views it endorses.

This is entirely different from what happened at UC Berkeley, which said it would be unable to physically protect Ann Coulter if she accepted the invitation from the College Republicans to speak there. As with the Fred Phelps example, physically protecting the speaker is vital to protecting free speech, which is why the College Republicans filed a lawsuit against the school after Coulter’s lecture was derailed by the threat of violence. Disinviting someone from speaking at your private organization after he says something you consider outside the bounds of normal discourse does not violate your right to free speech.

Physically protecting the speaker is vital to protecting free speech, which is why the College Republicans filed a lawsuit against UC Berkeley after Coulter’s lecture was derailed by the threat of violence.

A few weeks ago, Salon’s Matthew Rozsa rebuking the Right for “imposing social penalties on its members for expressing controversial opinions.” Citing the Lahren and Yiannopoulos incidents, Rozsa called conservatives “special snowflakes” and quoted Ken Paulson, president of the First Amendment Center, as saying:

The First Amendment protects insightful ideas, but also stupid, insensitive, hateful, and deeply offensive speech. There’s no cherry-picking the right to speak.

Rozsa is conflating “social penalties,” for which the First Amendment offers zero protection, with freedom of speech. He’s not alone in his confusion.

Colin Kaepernick took a knee on the field during the National Anthem at his National Football League football games last year. Some people hailed him as a hero; others turned off their televisions when he was on. Much was written about whether Kaepernick had a constitutional right to sit out the Anthem. The answer is that of course he did. But the NFL wants to be America’s organization, playing America’s favorite sport — patriotism is woven right in. Kaepernick wore T-shirts emblazoned with depictions of Fidel Castro: It wasn’t the right image for his employer. For the upcoming football season, Kaepernick remains unsigned.

Writing in USA Today recently, Christine Brennan argued that an unsigned Colin Kaepernick was bad for the NFL. Maybe so. She asked why there are successful NFL players who have a history of violence while no one wants to hire Kaepernick. Her point here is valid: The NFL should be rooting out players with a history of assault. But Brennan went further: “To fail to acknowledge — and even celebrate — that what Kaepernick did was his right as a U.S. citizen is to ignore one of the reasons the United States is the great and free nation that it is.” Yes, Kaepernick has a right to say and do what he pleases. The police are not going to come to his door, and no one is going to force him to his feet for the National Anthem. This is indeed part of what makes America a great and free nation.

But Colin Kaepernick is not good enough as a football player to be the type of distraction that he was. Other football players became distractions in a similar way. Terrell Owens put on a show everywhere he went, and teams grew tired of it. No one owes Kaepernick a job. That’s not a violation of freedom of speech; that’s business. Kaepernick has signaled he plans to stand for the National Anthem this year should he get signed to a team. Smart.

Business won’t always lean against talent. Stephen Colbert aimed what some saw as a homophobic slur at President Trump last week — and he still has his job. It’s not freedom of speech that is protecting him; CBS is entirely within its rights to fire him for misrepresenting the network or being out of synch with its brand. The fact that his bosses haven’t fired him or publicly reprimanded him in any way shows that they approve of — or at least are not bothered by — his comments.

The lesson is this: “Say what you want if your boss is on board, but don’t blame the First Amendment if your boss is not.”


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