Ducks, Dixie Chicks, racist mascots and the First Amendment

For all the national debate over the meaning and intent of the Second Amendment that’s raged in the country in the last few years, this week revealed that America jumps right over the First Amendment to get to the more intense debate, which is a bit odd because the First Amendment is a much more interesting and sweeping amendment. That’s why it came first.

Many Americans, this week’s news stories confirm, don’t have a clue what it says or what it means.

It’s simple, really:

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.

This week’s suspension of a reality show star by the A&E Network, based on an interview in a magazine, brought a wave of claims of free speech violations.

“I remember when TV networks believed in the First Amendment,” Louisiana Gov. Bobby Jindal said in a statement. In taking his office a few years ago, he swore to protect and uphold a Constitution that he clearly does not understand.

“The right to free speech has nothing to do with having a gig on television,” conservative commentator Jonathan Tobin rightly points out. “No one has a right to such a job and nothing prevents those who run these outfits from choosing who works for them. That applies to (ex-MSNBC host Martin) Bashir as well as to Robertson.”

Liberals, too, mold the First Amendment to suit their purposes. One of the most popular musical acts of the ’90s, the Dixie Chicks, were banned from country music stations when they dared criticize President Bush. Their careers collapsed. They still tour occasionally, but not in the land of the free.

A violation of free speech? So opponents of the war in Iraq said. They were wrong. The government played no role in their destruction and didn’t punish them for the beliefs.

But the “Duck” controversy isn’t the only story in the news this week that invokes an application of the First Amendment which inspires debate.

Yesterday in Wisconsin, Gov. Scott Walker signed a bill that critics say weakens a state law to rid the state of racist nicknames in the state’s schools.

Under current law, a single complaint about a nickname can spark a review of a nickname, placing the burden on a school district to defend it. Now, it will require a petition drive. The new law also wipes out all existing state orders for schools to eliminate racist nicknames.

In making his decision, Walker raised “free-speech” issues:

After careful consideration of the arguments, both for and against this bill, I have decided to sign it into law. The bill creates a process by which the citizens in the communities affected have input and direct involvement in the undertaking of changing a school mascot.

I am very concerned about the principle of free speech enshrined in our U.S. Constitution. If the state bans speech that is offensive to some, where does it stop? A person or persons’ right to speak does not end just because what they say or how they say it is offensive. Instead of trying to legislate free speech, a better alternative is to educate people about how certain phrases and symbols that are used as nicknames and mascots are offensive to many of our fellow citizens. I am willing to assist in that process.

With that in mind, I personally support moving away from nicknames or mascots that groups of our fellow citizens find seriously offensive, but I also believe it should be done with input and involvement at the local level.

“The governor apparently does not understand that the First Amendment protects citizens from government censorship,” ACLU Wisconsin executive director Chris Ahmuty said in a statement.

Government programs are not allowed to offend, harm or otherwise discriminate against citizens on the basis of the First Amendment. The First Amendment simply doesn’t apply when it’s the government taking action.”

This will most certainly end up in court over the question of whether the government can regulate the speech of government.

  • Paul

    They asked Phil what he thought. He answered. Guess he didn’t give the answer some people wanted. If you don’t like the show don’t watch it. Some of us do like it.

    • The decision wasn’t made by people watching the show. It was made by the people who own it. The point, however, is irrelevant in terms of any constitutional or free speech issues.

  • KTN

    The funny, albeit sad and pathetic, but funny nonetheless part of this idiot losing his job on a reality TV show is that he spoke, without fear of censorship from the government. It appears many of his apologists are unable to discern the difference of being free to speak and the backlash of the unseen hand of the market.

  • DavidG

    the most generous analysis would be that they are using “free speech” as a short hand for the something like the old saying that “the antidote to distatsteful speech is more speech.”

    But, I think that’s giving them too much credit.
    (as another example, Sarah Palin has criticized A&E’s decision, yet applauded MSNBC’s firing of Martin Bashir.)

    • It’s hard to expect more from Palin. she doesn’t really get principles; she just uses them.

  • Ben Chorn

    I find it funny how many people are saying it is because of his religious beliefs, while A&E allows them to frequently talk about Jesus and closes every show with a prayer.

    • Well, the guy is pretty much ALL about religion — or his interpretation of it — and the interview makes that pretty clear. But in the context of the First Amendment issues, of course, it doesn’t matter.

      For whatever reason, and within their rights, A&E wanted to disassociate itself — apparently temporarily — while, they assume, it blows over.

    • It is amazing the way some conservatives are talking about it like A&E hates Christians, as if they haven’t given this man a platform to begin with.

  • rosswilliams

    “The government played no role in their destruction and didn’t punish them for the beliefs.”

    That isn’t really accurate is it? Broadcasters are federally licensed. So the government, in fact, plays a central role when an artist is denied access to the broadcast media. Whether that is prohibited by the first amendment is entirely up to the politics of the Supreme Court, itself a part of government.

    What is true, is that the first amendment does not require the government to defend people’s freedom of speech or prevent the powerful from suppressing it. Once it has handed power to broadcast media, it can pretend the exercise of that power is an entirely private decision. But to claim that government “plays no role” is just repeating a false, self-serving, narrative.

    • A radio station is licensed by the government — ostensibly for spectrum use — but that doesn’t make it the government any more than you’re the state of Minnesota because you got a license to drive.

      If you should happen to smash into someone today, I’d have a hard time describing your hard luck as “the state of Minnesota had an accident at an intersection” today.

      The Senate Commerce Committee did hold a hearing on Clear Channel (and others) actions wrt trade issues and the dangers of having a corporation control entertainment from beginning to an end, but that’s not a First Amendment issue either.

      In the context of government interference in the destruction and blacklisting of the Dixie Chicks’ career, there’s no first amendment issue.

      We know, of course, that the First Amendment is not absolute (“fire in the movie theater” and all that) and its protections do not extend equally, especially in the case of broadcasters who are restrained in advance for certain content. Ideally, one supposes, the gentlemen from the ACLU in Wisconsin would again point out that — if a radio station is part of the government — the government is free to restrain it. Unfortunately, that argument has never advanced, to my knowledge, even in the FCC v. Fox case. One can conclude that in the absence of such an argument despite the many opportunities to invoke it, such a premise does not exist. Instead, broadcasters are restrained simply because the Communications Act which gives the FCC the power to regulate, while not defining them as the government or an extension thereof.

      I respect your opinion that there is a government role (and obviously I’m talking about a First Amendment role) in that particular case and it would be a fascinating case to watch if one — just one — of the billions of lawyers in America who seem to have some expertise about these things comes around to agreeing with you and actually files a case.

      But, since it’s been 10 years, I’m guessing it’s not likely.

      Extending your observation to the Duck case, since A&E would require an FCC license as well for certain use of frequency in the transfer of programming, or even since cable TV rates are regulated by local governments, theoretically that means the government similarly had a “central role” in suppressing the Duck gentleman’s speech, in which case that loops us right back to the second paragraph of the post once again.

      The First Amendment, or even the definition of government, isn’t Six Degrees of Kevin Bacon.

      • rosswilliams

        The notion that a broadcast license is akin to a drivers license is ridiculous.

        • Isn’t it, though? As someone who once was in the family business of radio ownership, I can tell you there’s no comparison between the two.

          But I didn’t say it’s akin to a driver’s license. I said a radio station license doesn’t define a radio station as “the government” (for the purposes of the First Amendment and most other legalities) any more than a driver’s license makes you “the state.”

          The question is does a license for either establish a legal definition and identity of the licensee as the agent of the institution granting the license.

          I’m unaware of any legal definition anywhere — let alone constitutionally — that so defines.

          Voice of America, I suppose, and Radio Marti are obvious exceptions. Not sure whether either played Dixie Chicks before or after the London incident.

          • rosswilliams

            You need to try reading instead of just repeating a cliche you learned that seems like a close fit.

            You did the same thing with the statement by the Governor of Wisconsin. He did not say he wanted to protect as a legal requirement of the First Amendment, he said he wanted to protect the freedom of speech that is “enshrined” there. Those are not the same thing.

            What I said was that government empowers broadcasters control of the public airwaves. That has nothing to do with the “first amendment”. The First Amendment means whatever the Supreme Court says it means. They might well rule that the first amendment protects the rights of the stations, including firing/boycotting people who say things they don’t like.

            You are the one that stretched the cliche “this isn’t a first amendment issue” into “the government played no role” and made the claim that it isn’t an issue of “free speech”. Neither one is true. These are free speech issues whether the repression of that speech is private or public. And without the government providing broadcast licenses to a narrow group of broadcasters, the Dixie Chicks could not have been forced off the airwaves.

            But I will stop arguing with your faith. There is no point.

          • I believe what you said was the government had a central role in the punishment of the Dixie Chicks because — if I follow your logic — the stations are licensed by the government. You were, as I understand it, formulating an algebraic equation on the matter. Govt licenses broadcasters > broadcasters destroyed Dixie Chicks = Government destroys Dixie Chicks.

            For the purposes of the discussion which is about legalities framed in the Constitution, there is – factually — no central role — or let’s use the phrase “active role” because it’s more accurate — in the blacklisting.

            The situation you’re actually describing is the end of duopoly rules and the station ownership rules whereby a corporation could own more than 7 AMs and 7 FMs, and the restrictions on owning more than one station in a market were lifted.

            Yes, you’re correct. Had those rules not been lifted in 1992 — and the Telecommunications Act of 1996 not been passed — Clear Channel would not be the behemoth it is, able to be the active role player in the blacklisting of the Dixie Chicks.

            By that argument, Marconi also had a role in this affair because had he not invented the radio, none of this would have happened, either.

            But, sure, by your definition, the government “played a role” in the punishment and blacklisting of the Dixie Chicks by statute.

            In the purposes and context measuring whether it was a free speech violation, of course, it did not.

          • rosswilliams

            “I believe what you said was the government had a central role in the punishment of the Dixie Chicks”

            Like I said, I am not going to argue with your beliefs.

    • kennedy

      In both cases, Ducks and Dixies, the government did not ban the content from broadcast. Neither can the government force broadcasters to serve specific content. It seems like you are unhappy with the outcome(s) and want the government to do something or stop doing something. What action do you suggest?

      • rosswilliams

        You are likely correct that the first amendment would protect the broadcasters “right:” to determine content, but that it doesn’t protect the Dixie Chicks “freedom of speech” if those broadcasters decide to suppress it.

        My point was pretty simple. If the government had not allowed a handful of people to hold a virtual monopoly on the airwaves, the Dixie Chicks “boycott” would have had very limited effect. Far from “no role”, government played a central role in determining who would be given the power to select content for broadcast. And with that power, the power to suppress the Dixie Chicks freedom of speech.

        • Nobody stopped them from speaking out against the war. None of their songs, first of all, was blatantly anti-war. As someone pointed out, they won 5 Grammys AFTER their freedom of speech was allegedly denied. They had no problem getting their views aired. They’ve been on the cover of several magazines.

          Natalie Maines has sold 30 million albums in this country of 320 million people alone. “Not Ready to Make Nice” was a top 10 hit, three years later.

          There is ZERO inherent right to airplay on the radio.

        • kennedy

          I apologize for being dense, but I’m not sure I understand. How is there a monopoly? There are dozens of stations available on my car radio. There are many more avenues on the internet to access music and video. There is a Dixie Chicks channel on Youtube. I do not feel in any way limited in my ability to access their music. I just now clicked over to a music website and was instantly (and legally) able to listen to their music. Their freedom of speech is intact.

          It seems you take issue not with access, but with the lack of mass market access to a product you like. I feel the same way when I go to the grocery store and they don’t have the donuts I like. I have to go to a particular bakery. There are not enough people that think like us, and as a result the products we like are not commonly available. That is not a monopoly or a conspiracy, it is free market economics.

          • rosswilliams

            “How is there a monopoly? There are dozens of stations available on my car radio. ”

            Most of whose programming is controlled by Clearchannel and a handful of other government licensed companies.

            That is even more true for the country stations that reached the Dixie Chicks audience. If you reduce “freedom of speech” to freedom to speak, but not be heard, then I suppose there was no suppression of their speech.

            What I took issue with was the claim that the government plays “no role” in this and It clearly does.

          • This alleged denial of freedom would have more traction if it weren’t the 21st century. Most large corporate radio stations have a very small playlist and do nothing to break in new acts; that’s done elsewhere. Lack of radio station airplay is no longer the significant barrier to success it was in, say, Alan Freed’s day.

            One good week at South by Southwest, the amplification of the talent by social networking, the availability of a digital product, the use of alternatives to terrestrial radio has, in many cases, made radio obsolete.

            The fears that corporate radio would control entertainment turned out to be relatively unfounded. The world simply stepped around whatever perceived obstacle existed.

  • davehoug

    The First Amendment simply doesn’t apply when it’s the government taking action = = = I thought that was exactly when it did apply????

    • I don’t believe he means the action of suppressing speech, I believe he means the action of speaking. In other words, is the racist logo or nickname of a government institution, the “speech” of people or the speech of government?

  • Linda

    NOT ONE of the people on Duck dynasty has ever said or thought segregation is good or that they wanted it back. Nonsense. Stick to the point. That being…….Phil has a right to say what he thinks. He did and I approve of what he said.

    • Just one question: How was his right to say what he thinks infringed upon? That’s the point. If he wanted to say more today, there’s nobody stopping him. He can say it. Same as it’s always been.