SYNDICATED COLUMN: 54% of the Time, Americans Aren’t Protected by the First Amendment


Of Hicks, Duck Dynasty and Free Speech

“Don’t talk about politics or religion.” It’s boilerplate advice, especially this time of year when family members and friends with varying cultural outlooks gather to break (if you’re a California liberal, gluten-free) bread.

Keeping your opinions to yourself is smart if your priority is conflict avoidance. But keeping the peace makes for seriously boring holiday meals.

Aside from the tense tedium of forced blandness, all that self-censorship accomplishes is to paper over conflicts and differences everyone knows or suspects are there anyway. Nothing gets resolved.

To the contrary, self-censorship enables bad ideas. Unchallenged year after year, the stupid people at the table return to their stupid homes as confident as ever in their stupid opinions, no matter how indefensible.

We are seeing the no-politics dictum play itself out with increasing frequency on a national level, with dismaying implications for freedom of expression.

This week we’re talking about “Duck Dynasty,” a reality TV show I haven’t watched. Phil Robertson, the ZZ Top-bearded patriarch of a Louisiana clan who struck it rich with a gadget that calls ducks, is the show’s star. He’s also a hick. Like many other hicks, Robertson holds stupid opinions about gays and blacks, which he expressed in media interviews.

After people complained about Robertson’s stupid thoughts, A&E “suspended” Robertson. He may or may not come back to the show.

Right-wingers, including ferret-faced Louisiana Governor Bobby Jindal and intellectual beacon Sarah Palin, played to their bigoted Republican base, issuing strident electronic missives decrying Robertson’s maybe-firing on the grounds of free speech. MSNBC and other Democratic Party mouthpieces responded in kind with a talking point that many Americans remember conservatives using against lefties during the Bush years: the First Amendment doesn’t guarantee you the right not to be fired.

“Yes, everyone is entitled to express his or her views,” Jill Filipovic wrote in The Guardian. “Not everyone is entitled to keep their jobs, though, if they decide to express views that are entirely odious and potentially costly to their employer.”

The same (used to be right-wing) left-wing talking point, cacophonously defending the capitalist “right” of bosses to shut up their workers, cropped up all over mainstream liberal outlets.

We’re again witnessing an odious truism: Americans defend free speech they agree with and sign on to the suppression of that they dislike. What if, instead of filling GQ magazine in on his far-right bigotry, Phil Robertson had gotten himself maybe-fired over an interview in which he expressed views that put him to the left of “mainstream”? What if, for example, he’d said instead that all Republicans are racists and homophobes? It’s a safe bet that joints like MSNBC and The Guardian would have denounced A&E for censoring him, and that Rush Limbaugh et al. would be the ones trotting out the “you can say whatever you want but you don’t have a right to get paid for it” bromides.

These free speech battles inevitably break down along partisan lines — but it’s dumb and hypocritical and needs to stop.

Let’s dispense with this sophistry that prevents us from getting to the meat of the matter. Yes, obviously, the First Amendment doesn’t apply. There is no legal issue. Under the law, A&E can fire Robertson.

The question is: should he be fired/suspended?

Should any employer be able to fire you because they dislike what you say?

On that point, my answer is 100%, unequivocally, no way.

“The right to freely speak your mind without government interference is crucial,” allows Filipovic in her essay. “But few of us are permitted in the course of our employment to say whatever we want without consequence from our employer.”

Legally, that’s true. To which I ask: why the hell not?

Americans spend 54% of their waking hours at work. What good is a First Amendment that ends at the keycard door? (Maybe we should rename it the Half Amendment.)

As someone who has lost gigs because I said something that someone didn’t like — usually about politics or religion — I’ve spent a lot of time imagining an America in which workers could express themselves freely. Try as I might, I don’t see the world falling apart if — I’m going to go extreme here — the bald guy at the hardware store turns out to be a Nazi skinhead — after all, the dude was a Nazi all along, right? If anything, it would be good to see him wearing a Nazi badge because, assuming I have the guts to confront him, there would then be a chance that someone could argue him into a better political place.

If you can be fired for expressing yourself at work — or, as in Robertson’s case, not at work, in an interview, which means that for him, 100% of waking hours are an A&E censorship zone — then free speech is a meaningless abstraction that applies only to the tiny fraction of superrich Americans who don’t have to worry about getting fired.

“It sounds nice in theory to say, ‘Walk away, and look for another job,’ ” says Lewis Maltby of the National Workplace Institute. “But in practice, most people just can’t take that risk. They just put up with it.” Which is why the American workplace is a fascist state. “In Arizona, you can be fired for using birth control,” noted The Guardian in 2012. “If you live in any one of 29 states, you can be fired for being gay. You can be fired for being a fan of the Green Bay Packers if your boss roots for the Bears.” Many workers have gotten fired for off-the-cuff tweets.

Because it’s legal to fire louts like Robertson for mouthing off, it’s legal to fire you too, for saying just about anything, no matter innocuous. In his 2007 book “Speechless: The Erosion of Free Expression in the American Workplace,” Bruce Barry documents countless examples of people losing their jobs over banal political speech — for example, having a John Kerry bumpersticker on their car.

Any judgment about A&E’s action on “Duck Dynasty” has to consider the result.
What, exactly do the “social justice warriors” who led the charge against Robertson win if they succeed in getting him fired, or “Duck Dynasty” taken off the air?

I doubt they’ll change Robertson’s mind about gays or blacks. You can’t bully someone into political correctness. The cure to the illogic of bigotry is logical argument. Which requires more effort than organizing an Internet pile-on. All that PC bloggers get out of Robertson’s suspension is a “victory” that makes them feel good. But it diminishes society’s racism and homophobia not one iota.

Bigotry can also give way to experience — like the time a vanload of big black guys with gang tatts emerged from their vehicle, carrying tire irons, while my car was broken down in bad-old-1980s-days Bedford-Stuyvesant. They fixed me up and sent me on the way — after refusing a tip. Robertson obviously needs to spend some time with some LGBT people and people of color.

Getting someone fired, on the other hand, isn’t exactly a recipe for making new friends.

For Robertson and everyone else, the message is clear: keep your politics to yourself, and you’ll be OK. Unless, of course, your politics happen to coincide with whatever happens to be acceptable to whatever happens to be mainstream at a given time — which can, and eventually will, change — and bite you on the ass. So yeah, if you value your paycheck, shut up.

A society in which the workplace is a zero free speech zone is not free. A nation without the free exchange of ideas, where everyone can express themselves without fear of economic retribution, is not — cannot be — a democracy.

The First Amendment should be amended to include the workplace.

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  • Well, Ted, just like already with discrimination cases, the employee or prospective employee will be given a bullshit reason and thus be unable to prove said discrimination. Or employers can go the route they went with your father and just do everything possible to force the employee to quit.

    Also makes me think of how many of us guys are leery of socializing with female coworkers lest we do something innocuous that makes them ‘feel uncomfortable’ and we find ourselves in trouble with HR. Intent and results and facts have become irrelevant. How ever did the idea of basing laws upon subjective interpretation go wrong?

    People have just learned to shut up and keep their heads down for sure. The dullest most PC people are in charge of the workplace and they get off on power trips. It has become standard advice to clean up your online social life because employers are watching. Freedom of speech off work? Long gone. I don’t feel safe telling people my real political views.

    • Harassment laws involve patterns of annoying behavior. If you are judged simply for approaching a co-worker, that is wrong. However the situation is different for a subordinate whose employment is dependent on one’s good graces. Such situations must be handled delicately, and overall it’s really kind of lazy to date your secretary. Or page.

      • But, employers who are afraid of getting sued for not addressing an issue in what is subjectively termed as a timely matter are likely to use “zero tolerance”.

        They’re also less likely to hire employees who may be likely to need protections (gays, women, blacks, etc.)

      • This is one of the few places where I diverge from liberals. White men can be discriminated against.

        For many years I accepted the feminist dogma that white men control everything despite the evidence in front of my face. A FEW white men control much. The rest of us are anything but privileged. Women and men who share their attitudes dominate HR which seems to do little real work. Women in HR find out that male coworkers avoid them. We also find out which female coworkers are prone to trumped up complaints.

        There is little and usually no consequence for a woman who falsely cries harassment, or in the same vein, rape, domestic violence, or child abuse or neglect against a man. Some women have noticed this and see the legal system as a means of revenge. Men are cowed. I did not say I personally have great worry about harassment charges. I am told I am pretty smooth since I feel like Miep suggested I am awkward. Men shouldn’t have to feel like they are walking on eggshells and carefully consider what they say around female employees lest they be misunderstood. I’m not talking about power differences. I’m talking about COWORKERS. I haven’t been accused of harassment myself but know and know of guys who have had unpleasant experience which paint a fuller picture of what happens. Same as a manager perhaps wanting to avoid hiring a woman or sweeping her allegations under the rug, a boss might rather just reprimand or even fire an innocent guy and appease the accuser without much consideration. Besides, female controlled HR is more likely to hire more women and favor them in other ways. Duh?

        The legal deck is stacked against the ordinary guy now certainly in marriage, parenthood, and I’m beginning to think employment, which is why I will never get married (one week she’s happy with me and the next I’m out on my ass and my kids, home, and money are no longer mine?) and am hellbent on owing a business so I don’t have to be the lifetime meek male employee.

      • I was once told by a woman whose job it was to assemble manuals to accompany customized products to “Go suck a fish,” when she refused to do her job. I complained to the Acting VP, explaining that I don’t have to take verbal abuse in the performance of my job. The Acting VP actually assembled the manual himself to avoid confronting the woman himself.

        Later in the lunchroom I came upon the woman sitting with three woman friends, sniffed the air at the table and asked if she were hiding a fish on her person? to which the table of women took great affront, claiming sexual harassment. I responded to these women that they must have dirty minds, must be perverts, because I was only referring to the fish I was asked to suck by the insubordinate woman.

        All four of them, properly chastised, shut up, and all discussion of the matter between them and myself ceased.

        Verbal Judo won.

    • You’re right Jack. Employers who don’t like what you say on Twitter or Facebook will just come up with some other bullshit reason to fire you if they can. But they should have to. It is bad for society for it to be normative to give employers this much power. To even say that they should be able to control what we say both in and outside of the workplace is some bad juju. We need to break the power of the corporations, and part of that starts with saying that they don’t have as many rights as they think they do.

      • “We need to break the power of the corporations, and part of that starts with saying that they don’t have as many rights as they think they do.”
        Ever since the U.S. Supreme Court ruled that corporations are “people,” I’ve been trying to find out why they get special tax breaks and subsidies unavailable to “the People” (citizens) of the U.S. Does anyone have an answer?

  • The US is not like the classical totalitarian regimes where people are mobilized into masses compelled into chanting political slogans to the tune of their authoritarian masters, but an inverted totalitarianism regime where the conforming masses recognize that political statements are appropriate only for the political classes, the upper classes, who, through their lobbyists make their political statements in the offices of the powerful.

    Most people recognize that speaking political is speaking above their class, and resent those who would dare to raise political issues that have their place only in the Kennedy and Bush family compounds, and the like.

    Have mercy on the little grovelling people who have been conditioned by their corporate masters to keep their heads down, their noses clean and know to hush those among them, who in speaking political, might signal to their monitors, inadvertently, the mistaken impression that they approve of this behavior if they don’t act to stifle it when it arises unexpectedly in their presence .

  • The situation is complicated, Ted, by laws that protect coworkers from a hostile work environment and/or harm in the workplace. Let’s say that an employer “tolerates” racist/homophobic/sexist speech by allowing harassment of one worker by another to continue; the employer may well end up on the losing end of a costly hostile workplace lawsuit for not having acted to curtail the offensive speech by either shutting up the offending worker or removing them (transfer to solo work area? termination?).

    Your defense of free speech is admirable and powerful, yet in another scenario an absolutist position can condemn a (female/gay/black/Jewish) child who is being relentlessly bullied verbally by schoolmates into depression and raise the possibility of suicide. Federal law defines schools as being workplaces. Other examples can be gleaned from the legal records of cases in which employers did not act decisively to curtail verbally abusive speech.

    Workers ought to be provided options to correct their behavior, to apologize, and to create a healthier workplace. The current state of affairs, which includes hordes of hungry lawyers sniffing the air for a deep pockets lawsuit, weighs against your position in a practical sense even though you retain the higher ground for your principled defense of free speech. I intend to study your essay and think deeply about the issues that you raise in it.

    That badge wearing, skinhead Nazi at the hardware store might well be driving away customers and threatening the livelihood of all of his/her coworkers and the store owner. If the workers owned the store perhaps they could work out an intervention, or the owner could assign the stormtalker to the stockroom, away from customers and coworkers. I find it hard to imagine your defending a scenario that saw a healthy business ruined because an overt racist was allowed to sieg heil their way through the workday. Consider the situation if you were producing a feature length animated film (hopefully you will do this sooner rather than later), and you discovered that one of the production artists was inserting swastikas into the backgrounds of sequences – how long would you tolerate that behavior? Or would you let it slide in the name of the worker’s right to speak absolutely freely?

    • @gofomo: you bring up a couple of really excellent points and I will try to address them.

      I have no problem with most of the laws that protect workers from an unsafe work environment, such as those that protect female firefighters from having their male colleagues post pornography on their lockers, etc. I don’t believe, however, that those laws need to be in conflict with what we are talking about: the expression of free speech. In the example of the Nazi hardware store worker, if we are living in a society where everyone is free to express themselves, his Jewish coworkers might also be free to wear giant Stars of David on their T-shirts or pro Israel T-shirts, etc. So there would be some balancing out of free-speech there. Where the Nazi worker would cross the line would be if he were to directly harass his Jewish coworkers or customers. That would be creating a work environment that would violate the law. As long as he is merely expressing his own opinions in a way that are not directed in a hostile way toward other people, I can’t see the problem from a legal perspective.

  • I’ll agree with the proposal to amend the 1st amendment but as for “A society in which the workplace is a zero free speech zone is not free,” does an interview in a national magazine constitute “workplace” speech?

    • Falco, I would say that in this case, even though the interview with GQ magazine was given because of Phil Robertson’s role as an actor in that TV show, it does not qualify as speech in the workplace. All the more reason why he should not have been fired.

      • Hey, Ted – while I found your spin on this thought provoking, I want to note that he wasn’t fired, he was “suspended” There’s a difference. (Nor is he actually employed by A&E – he works for a company which sells the episodes to A&E) A & E is exercising their First Amendment rights to determine their own programming.

        Back at the turn of the last century, morals clauses were common. A woman could be fired for drinking in a bar or wearing skirts that shamefully revealed her ankles on her own time. These things had no bearing on job performance, and the courts sided with labor – those clauses are no longer allowed in most situations.

        But things are different when you’re a celebrity, actors and athletes are still subject to morals clauses in their contracts. Their product is their face and voice, their saleability is very much dependent upon public perception. If the public’s opinion of them drops, then their product is worth less on the open market.

  • This is not about politics, it’s about money. The A&E execs couldn’t care less about what this redneck said, what they care about is the ad revenues. If it turned out that making homophobic statements were more profitable, they’d have done nothing. As it is, making such statements is becoming less and less profitable, and perhaps even cutting into the profits in the bigger picture as the country becomes more tolerant. Add in the fact that gay people are better educated and spend more than indigent rednecks and the answer was clear.

    But let’s not be silly and pretend this was about politics. It’s about money. Almost everything is.

    • I understand that Governor Bobby Jindal defended the rednecks on the basis of Louisianan tourism possibly being negatively affected by the show’s cancellation, saying he would try to find a new network to show it if it was cancelled.

      It’s both money and politics. The terms were used in conjunction many years ago, as “political economy”, before economic thought, in a case of physics envy, sought a mathematical existence separate from the political.

      Convenient for the capitalists who could claim that a bad economy was like blaming gravity for a fall, not having a responsible human political component anymore.

  • The argument Ted makes above is not for traditional free speech, but for free-of-consequences speech. Yeah, it’s a misery that economic forces will influence one’s expression of political and other ideas. Of course this also forces restraint that is welcome to many and enables a relatively peaceful society.

  • Jack: I most assuredly did not mean to suggest I thought you were awkward. I mean, we’ve only just met 🙂

    My point was only that there are certain valid parameters that people should pay attention to. Be careful with subordinates; no means no, not “push harder”; don’t play games, don’t be too aggressive. It is always, I suspect, potentially difficult to date people you work with. Probably the best way out of this trap is to look at other organizations such as clubs. If I was looking for a person to date and lived where there were reasonable numbers of intelligent people, I’d look at joining weird geek clubs. Proximity can be kind of an easy trap.

  • I suppose the question that really comes to mind is why it is necessarily a good idea not to be hypocritical when dealing with people who, in half a second, wouldn’t really care about the same kinds of rights when they have power, or rather, since most of the time they do have it and people like me haven’t had it. How much respect for free speech rights did Phil Robertson show when he said that when he grew up, he didn’t see black people complaining about the conditions that they were in?

    • alex_the_tired
      December 25, 2013 2:51 AM

      You come to the part of the issue that Robertson either is unwilling to examine or is unaware of in the first place:

      The shorthand word is “uppity,” as in “uppity Negro.” This was the catch-all term used for those blacks in Jim Crow’s South who complained. And there were several highly effective ways of dealing with those uppity types:

      Crossing the street? That’s jaywalking. Standing still? That’s loitering. Walking down the block? Creating a public nuisance. All three draw the same sentence: 30 days clearing brush on a chain gang. It was pretty effective.

      Eventually, it would be expanded to cover the workplace. But it’s Christmas. Let’s all try to enjoy ourselves.

  • Re: Glenn’s verbal judo.

    Glenn, you are the luckiest person on the earth. Four women with a complaint of sexual harassment against one man, no matter how provoked? You will not only end up out on your ass, you will be marked bad in all the books.

    I have exactly one work persona: a dull, slightly not too-bright fellow. I am always pleased to help. I smil a lot. I sit at meetings and nod my head occasionally. I never, EVER, offer suggestions or advice unless I know the individual well and we are in a setting where there is no possibility of the other person feeling intimidated.

    I have many female co-workers with whom I get along well. But when I have a complaint with the work performance of one of the women in my office, I say nothing. I avoid all discussions of matters such as race, politics, gender, sexuality, etc.

    Why? Because only a fool jumps off a cliff and tries to fight gravity on the way down.

    • Wrong Alex,

      She got the bad job review, I got the pay raise after the downsizing.

      I went straight to the VP when he came back and told him in no uncertain terms that I don’t tolerate that kind of shit.

      I’m a nice guy too. But I’m never convinced that if I can’t win that I can’t make someone pay for their efforts to find out what it takes to beat me, and regret what it cost to find out.

      Bosses like timid smiley people; they are much easier to downsize. If you believe you are beat before the competition you are already half lost. That’s why I hate Democrats.

      • alex_the_tired
        December 24, 2013 6:24 PM


        One detail. Your response assumes that I never complained. That I never went to a boss and voiced an objection. That I never got screwed over.

        There’s a great line from an episode of Star Trek: the Next Generation — “It is possible to commit no mistakes and still lose.”

        I’ve been on the receiving end of being completely in the right, and going up against a corporate culture right out of high school, and being made to eat a yard of shit.

        Try it once, then get back to me. Because no one who’s been through it comes back with the “I don’t take this sort of thing” attitude. You come back from it with a “this entire idiocy called work isn’t worth it.”

        I’ve got a lot of friends at work. But I’m not interested in trying to be the big man in the cubical farm. The stakes are too small.

      • Alex,

        “It is possible to commit no mistakes and still lose.”

        I totally agree. If it weren’t true there wouldn’t be a few living high off the many and so many left climbing over each other like crabs in a bucket.

        I don’t want to go through a litany of shitty experiences because it would only come off like whining or worse, and there are things better left unsaid. And more so, unwritten.

        So I’ll leave it at that.

  • My letter 2 da editor wasn’t published – so here’s a good place:

    Every time I think I’ve heard the stupidest possible nonsense from a
    Republican, another one comes along and tops it. Enter Governor Bobby
    Jindal, commenting on A&E’s suspension of Phil Robertson for making
    homophobic remarks. Evidently, Bobby believes that the bully is the
    real victim here. That kind of twisted logic just makes my head hurt.

    He said, “[Liberals] are tolerant of all viewpoints, except
    those they disagree with” – uh, no, Bobby – being opposed to bigotry
    is not the same thing as being a bigot. Bigots hate people who have
    done them no harm, liberals are opposed to bigotry because it does
    harm people.

    If that wasn’t bizarre enough, Bobby goes on to say, “I remember when
    TV networks believed in the First Amendment.” Seriously? Robertson’s
    First Amendment rights haven’t been violated in the least, he can
    still make all the disgusting comments he likes. A&E is exercising
    THEIR First Amendment right to determine their own programming.

    Now, I can see where that might be too subtle a distinction for an
    ignorant swamp dweller – but Bobby wants to be president. Wouldn’t
    you prefer a president who actually understands the Bill of Rights? I
    know I would.

    • Sorry for the formatting, didn’t realize it was going to do that when I hit the ‘post comment’ button. Where’s the ‘edit’ button?

      • I’ve been asking for that button since the new website rolled out. It seems the big drawback is the fear of members posts being deleted after a discussion has evolved, leaving the thread incomprehensible. I can understand that, but correcting grammar/spelling or, in your case, reformatting should be an option for members.

      • Either editing is an option or it isn’t. It’s not like there is an in-between choice, sadly.

      • Actually the edit-comment plug-in allows you to set the time for how long a comment can be edited, so it’s possible to avoid the flameout-delete problem by making it a very short period of time. But hey, Ted’s blog, and not really that big a deal.

      • I am not that knowledgeable about these things, but the current webmaster (with whom I’m well-acquainted) is, and he should be able to set up a “button” that allows edits within a time-frame of five minutes (or less) and the “Delete” option can be disabled altogether. What about it, Alex? 🙂
        Ted, is this an acceptable “compromise”? 🙂

  • Sorry, I must deviate from you on this one. I think it’s a valuable discussion to have that people should be free to voice their views without retaliation from employers (this is the fundamental principle behind tenure in the university system), however that discussion does not extend from the First Amendment. The First Amendment ONLY regulates the actions of the US Congress (the Federal level)…it says nothing about the private sector, or even state and local municipalities.

    While I agree that people should have freedom of conscience, I also think there is room for discretion here. The Duck Dynasty pukes are in the business of entertainment, and therefore I think it is completely reasonable in THIS CASE that they should be confined to the message that their employers want to maintain. After all, entertainment is all about message control.

    More seriously is when people get fired from a job for a bumper sticker that’s on their car, or what they put on Facebook. This comes from the idea that employers completely and totally own their employees….and that all of us are representatives of our employment overlords, all the time.

    • But, Aggie, how can one legally distinguish between the examples that you cite, like the person who mouths off on Twitter or Facebook or has an Obama bumper sticker on the car, and the duck dynasty guy? I think it’s clear and cleaner to just say that employers should not have the sort of power. Besides, given how little they are paying us, have a really purchased the right to own our speech?

  • I’ve been reading with interest the debate here about whether one’s employers ever have the right to buy one’s public image, and when. I can see how the gray areas could be crazy-making legally, but social media does bring up the question.

    I don’t have anything to add to the discussion of men feeling they cannot criticize female coworkers’ performances for fear of harassment claims because I think this sort of thing would have to be dealt with on a case-by-case basis and both sides heard, which is not what has been happening here. Again, harassment is legally best defined as a pattern of unwanted annoying or threatening behavior. Thus it is impossible to evaluate such claims out of context.