Freedom of Speech is Larger Than the First Amendment

Or: “Duck Dynasty Collides With the Fourth Wall”

Strap yourselves in, because this is a long one.  So everyone has been talking about Duck Dynasty, and how A&E has indefinitely suspended Phil Robertson, one of the show’s stars, for some anti-gay remarks.

Let me start by saying I don’t like this show and don’t watch the show.  The truth is I hate virtually all reality TV.  And in a weird way all of this controversy had really helped me put my finger on the reason why.

The one time I sat through an episode gives a good illustration.  My parents were in town and my father does enjoy it, so he roped me into watching it, even though as I noted above I hate most “reality” TV.  Mind you, Duck Dynasty was no better and no worse than most of the other shows as far as I could tell, but for all the reasons why I categorically hate most reality TV, I hated this show.

The plot of the episode had its amusing moments.  One of the two brothers, who honestly look so much alike I doubt I could pick them out of a lineup, got a katana in the mail from someone or other.  If I understood correctly, it was a real and therefore priceless artifact, having been folded thousands of time to give it the right amount of flexibility as genuine samurai swords are.  So then he played with it a bit, and then forbade the other brother from doing so.  So the moment he was gone, you know what happened: the other brother played with it.  And then broke it.  And then spent most of the rest of the episode trying to find a way to fix it right, and then doing a weak job on it himself—good enough to pass a brief glance, but likely to be detected on closer inspection.  At the end a young girl, I think the first brother’s daughter, asks to play with it and the repair breaks and the poor girl thinks she broke it.  And the brother who broke it just kind of shuts his mouth and lets her think that.

Which is clever and all, until you remember at some point the first brother—the one who got the sword—is probably going to find out what the second brother did.  Or the girl the break was pinned on.  I mean, even if they don’t actually watch the show, you figure friends and neighbors do, so...  the whole plan is bound to unravel and the first brother might end up being angrier than if the second brother just owned up to it at the time.  And none of his buddies watching the second brother do all of this, breaking the sword and then trying to repair it, mention that this might happen: “Oh sure, your plan to lie to your brother as it is broadcast on national TV is foolproof.”

See there is a concept in art called The Fourth Wall.  It comes from the stage plays where you would often see, say, a person’s living room and there would be three walls you could see, but the last wall, is removed, like the image here.  Because how can you see a play if you can’t see into the house where it is happening?  It’s emblematic of a central conceit in all fictional storytelling: that no one knows they are in a story.  The people on stage don’t know they are on a stage: they think they are in a living room, or wherever.  The lovers you see on screen in a movie are not typically exhibitionists happy to show the whole world as they are making love.  Part of the conceit is that actors are pretending there are no cameras around, that they are a couple who are utterly in the privacy of their own homes (or wherever they happen to be).

There are exceptions to that, and we call that, in turn “breaking the fourth wall.”  Famously the Marvel character DeadPool does this often.  You'll see two examples on the side (enlarge as necessary):

Or for a more famous example, do you remember all the times that Ferris Bueller spoke directly into the camera?  Who was he talking to, but us?  So either Ferris was actually insane (which is possible) or he was “breaking the fourth wall.”  And sometimes that works, and sometimes it just kind of leaves you flat.

But here you have sort the opposite: the false erection of a fourth wall.  Everyone on a reality program knows they are being filmed, but they go to great lengths to pretend they are not being filmed.  A true reality show would have people going back and watching themselves on TV and everyone else and responding to how they were behaving.  And that might actually be interesting.  Imagine you had an argument with someone and then you could see yourself later having the argument?  Would you continue to believe you were right?  Would you decide the argument was silly in the first place?  Or imagine that a star asks the camera operator if he or she saw something pertinent to the plot of the episode?  That could be interesting.

And that is pretty much the dividing line between “reality” shows I like and the ones I hate.  I enjoy an American Idol or similar show because the existence of cameras is part of their reality.  It’s un-intrusive, but everyone knows it is there.  But most “reality” shows erect a false fourth wall that makes no sense and in turn the existence of cameras alters their reality in ways they never acknowledge (except in those confessional moment when they talk directly to the camera, of course).  Has there ever been a moment on a reality show where someone said, “Snooki is just acting like that because the cameras are there, and she wants to be famous for being crazy”?  No, not that I know of.  They pretend that the camera is not there, they pretend the fact they are on television has no influence on their behavior.

And that is kind of getting at a really important point.

Let’s start with the basics.  First, there is the facts.  Reading from this Howard Kurtz article you see Robertson saying the following:

“It seems like, to me, a vagina — as a man — would be more desirable than a man’s anus. That’s just me. I’m just thinking: There’s more there! She’s got more to offer. I mean, come on, dudes! You know what I’m saying? But hey, sin: It’s not logical, my man. It’s just not logical…

“Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men.”

And I have read fuller versions of that statement that make it exceedingly clear he finds a great deal of this justification—if not all of it—in the Bible.  And later on, Kurtz has this comment:

Robertson offered a more tolerant statement to Fox411, saying he is a reformed sex-drugs-and-rock-‘n-roll guy who found Jesus and “would never treat anyone with disrespect just because they are different from me.”

So he is not saying he is in favor of any kind of discrimination against gay people.  He is just saying that he thinks it is a sin.  He doesn’t like it.  That’s all he has said so far.  Which is the point of the meme I posted at the beginning.

And let’s talk about something else really basic, here.  I am hearing a lot of people saying that this is not a matter of free speech.  Here’s Howard Kurtz saying it:

Despite all the rhetoric you’ll hear, this is not a free speech issue. Robertson is entitled to say whatever he wants, as he did in the GQ interview, and A&E is entitled to pull him off the air if it deems the comments offensive. There is no First Amendment right to appear on a television show.

And here’s an article by “Forward Progressives” (whatever that is) linked to by the lovely, albeit incorrect, Alyssa Milano:

Freedom of Speech: The legal means to say almost anything you want.  Meaning that as private citizens, we’re allowed to say nearly anything (with a few exceptions of course) that we want without fear of legal prosecution for it.

Unless I’ve missed something, Mr. Robertson faces no legal ramifications for what he said.  That’s what freedom of speech means.  Freedom of speech does not mean we can say anything we want without ramifications for what we say from our peers or employers.

And I got a lot of attention (including from my civil co-defendant Twitchy) with this pointed question:

so if there is nothing wrong w firing a person for political beliefs, what was wrong w the Hollywood blacklist of communists? @Alyssa_Milano
— Aaron Worthing (@AaronWorthing) December 20, 2013

I remember growing up hearing about it.  Supposedly the Hollywood blacklist was considered a dark time, where a person who was a communist, or merely suspected of being one, could get no work in Hollywood.  Isn’t that pretty much the same thing?  Private companies refusing to employ people who held views that they didn’t agree with?  What exactly is the difference?

Or consider another example that I famously dealt with.  A few years back there was a protest called “Everyone Draw Mohammed Day.”  The reason for this was because we saw a threat to freedom of speech—not from the government, but from private individuals who said that if you dared to depict Mohammed, however benignly, that they would execute you.  They specifically threatened the creators of the show South Park and hundreds of thousands of ordinary people vowed to draw Mohammed too, to make it clear that if they were going to kill anyone who depicted their prophet, they would have to kill all of us.  (My mission statement in the site I created to participate in this protest is attached as an exhibit to the memorandum embedded here.)

The right of freedom of speech—indeed freedom of expression in general—is greater than just the edicts contained in the Constitution.  That greater, super-Constitutional right might not be a “right” in the sense of a legal right that can be enforced in a court of law, but it can be a moral right that is recognized in the hearts of the people and fought for by informal methods, like the Everyone Draw Mohammed Day protest, boycotts and the like.  And it is not limited to the concern that that the government will put its jackboot on one side of an argument, skewing our debate.  It is a belief that freedom of expression and inquiry needs to be defended from all opponents, private or governmental, that the only thing that should influence the marketplace of ideas is the persuasiveness of the argument.

And maybe it should be expanded as a legal right.

For instance, should a company be allowed to say to its employees “either register as Republicans or leave the company”?  Most people would recoil at the thought, whatever party they belong to.  And I think most of us get that if a woman works as a waitress by day and at night writes a blog that tells us how much she hates the governor (be that person a Democrat or Republican), I think most of us would think it is wrong to fire her for that off-the-clock speech.  As long as it doesn’t directly affect her job, her speech on her time should be her business.  It isn’t generally the law that prevents this sort of thing from happening, but the market.  We hold in our hearts the belief that this would be wrong, to the point that a company that behaved this way would harm its own competitiveness: people wouldn’t want to work for them.

And some states have experimented with the idea of forbidding viewpoint discrimination in employment.

But all of those rules change when we get to companies who engage primarily in expression: that is, movie studios, television networks, newspapers and so on.  We instinctively understand that the freedom of an actor or actress to speak out is curtailed.  It is from that perspective that the idea that “Robertson has the right to speak, but A&E has the right to fire him” seems to make the most sense.  Matt Damon, and for that matter, Alyssa Milano, are rightfully limited in their right to speak without repercussions in their employment.

This is the most obvious on the set.  If Matt Damon is staring in an adaptation of the Fountainhead, one of Ayn Rand’s books, and the line is, “The age of the skyscraper is gone. This is the age of the housing project. Which is always a prelude to the age of the cave” that is what he has to say.  He is not allowed to instead say, “gosh, aren’t housing projects great and swell?”  He has a line and he is supposed to deliver it and if he won’t, he is rightfully fired.

And outside of the set, the actor/actress is rightfully supposed to watch their mouths.  If Alyssa Milano is promoting a television show set during World War II, and she suddenly decides to tell everyone that she thinks Hitler was right about the Jews after all, that is a problem.  She can be rightfully fired from that show.

(All of that is purely hypothetically speaking, by the way.  She never said anything like that.  On the other hand, I am not sure Matt Damon would be caught dead in a reverent depiction of any of Rand’s works.)

And even if in my hypothetical, Ms. Milano doesn’t say it in public, but only quietly over a drink with the producers, it is cause for concern.  After all, if she is not sufficiently sensitive to the plight of Jews during WWII, she might not be able to convey what she needs to show to the audience.  After all, the company has a right to create art that contains the messages it wants.  And if it wants to make a movie praising Ayn Rand, then it can hire and fire whomever it needs to, to find the people who will bring that message to life.  And if it wants to show the horror of the holocaust in a way that acknowledges the humanity of the Jews and the cruelty of the Nazis and their collaborators, then they can hire and fire whoever they need to, to accomplish that goal.

So that is the best argument for suspending or perhaps permanently firing Phil Robertson.  In announcing the suspension, A&E said that “A&E Networks... have always been strong supporters and champions of the LGBT community.”  So A&E wants to send the message that being gay is okay and not at all sinful, and they are willing to suspend—maybe even fire Phil Robertson—for undermining that message.  And so far it seems most of the left is cool with that.

Which is funny, because what they are really saying is that A&E, as a corporation, has a right to freedom of expression, too.  And part of how they express themselves, is to fire people who don’t tow the line.  I mean would it surprise you to learn that at the same Forward Progressive site that Milano linked to, there is a denunciation of Citizens United?  Yeah, me neither.  But here they are praising what amounts to an act of corporate self-expression.

One exception to this, interestingly, is Andrew Sullivan.  He writes:

But look: I come back to what I said at the beginning. Robertson is a character in a reality show. He’s not a spokesman for A&E any more than some soul-sucking social x-ray from the Real Housewives series is a spokeswoman for Bravo. Is he being fired for being out of character? Nah. He’s being fired for staying in character – a character A&E have nurtured and promoted and benefited from. Turning around and demanding a Duck Dynasty star suddenly become the equivalent of a Rachel Maddow guest is preposterous and unfair.

What Phil Robertson has given A&E is a dose of redneck reality. Why on earth would they fire him for giving some more?

It’s a tempting argument because it reeks of unfairness.  Hey, he was just some guy on an unscripted show and suddenly you want him to fit some Northeast corridor liberal script?  C’mon, guys.  You knew when you hired him you weren’t going to get a Greenwich liberal, why act all shocked?  I mean what is next?  Is Comedy Central going to fire the creators of South Park for using curse words in their show?  Is HBO going to cancel Game of Thrones for having too many nude male appendages?

It is attractive, but it requires you to buy into the fundamental conceit that this is reality you see on reality television.  But is it?  This whole fourth wall problem I mentioned above makes me wonder.  Is this like watching two boxers go at it in the ring, where anything could happen and the outcome can be guessed at but never predicted?  Or is Duck Dynasty and most of reality TV more like pro wrestling?

I mean remember back when they pretended pro wrestling was real?  In fact, one wrestler was so mad when John Stossel said wrestling was fake, that he brutally assaulted the man:

That clip is admittedly watchable because, unlike pro wrestling, it was real.  Stossel sued the crap out of his assailant and rightfully so.  And these days everyone admits it is fake.  Which makes that scene even dumber than it was when it first aired.

(And by the way, wasn’t that literally an assault on free press?  Even if the government didn’t do it, don’t you think the next reporter would have been scared to ask the same question?)

So the question is what is Duck Dynasty like?  Is this like a boxing match?  Or is it like a pro wrestling match?  If it’s pro wrestling, then this looks more like the examples involving Matt Damon and Alyssa Milano above, and morally their freedom of speech can be greatly reduced.  Firing Robertson is fair if the show is more scripted than they let on

But we see it as being a mostly spontaneous slice of their lives, then even if there is a morals clause, Robertson might have some recourse.  A judge might find that implied into the contract of a reality star is the right to speak freely, that the whole idea is that he is not the voice of the network, but a voice that the network finds interesting if not necessarily one it endorses.  I mean there is something inherently contradictory in saying to Robertson, “be yourself, let us film it, and we’ll pay you,” and then suddenly saying “don’t you say that.”

Which might have interesting ramifications down the road.  Suppose this turns into a lawsuit?  A&E might find itself arguing before the court that in fact the show was pro-wrestling and therefore they shouldn’t be allowed to pretend they can go off script, which in turn could undermine the entire reality TV industry.

What is dumb, here, is that they are missing an opportunity.  Instead of suspending him, why not use the issue on the show?  I’m not sure we should see Robertson subjected to the hell of “sensitivity training,” but maybe have him deal with a gay man, on the show, who confronts him about what he said.  If done right, maybe they could come to some kind of understanding and maybe it could even be a ratings win (which is much easier to arrange if the show really is pro wrestling).  That would seem like the obvious win-win scenario here.  But will anyone be smart enough to do that?

I also flirted with the idea of passing laws to protect people from workplace discrimination based on viewpoint, but even if such a law was a good idea, I think it shouldn’t apply to companies in the business of expression like A&E and in other workplaces I am not convinced that a law would do more good than harm.  For now, let the market and our own freedom of expression work it out.  And certainly in the case of A&E, that is what should happen.  A&E wants to suspend Robertson.  Well, okay, then viewers can suspend watching A&E if they are so inclined.  But anyone who felt it was wrong to drive communists out of Hollywood in the 1950’s is a hypocrite if they think it is okay to drive anti-gay voices off of television.  I mean either that or they are just communists.  Private consequences meet private consequences.

(I myself won’t be boycotting the show not because I don’t necessarily sympathize with those urging a boycott, but because you can’t boycott a show you weren’t watching in the first place.  But there is something creepy about firing a man for merely having an opinion they don’t like in the name of “tolerance.”)

But more than ever freedom of speech is under siege in America, and I am really getting scared that it doesn’t live in the hearts of the people.  We see liberals responding, for instance, to threats to murder a person for blaspheming Islam, by getting angry at the alleged blasphemer.  We see liberals spout nonsense like “hate speech is not free speech.”  We see them declare that corporations should be silenced because they don’t like the messages they think they would expound—oh, except for newspapers, movie studios and other kinds of media companies they conveniently dominate.  And we see too many liberals stand silent as thugs like Brett Kimberlin try to silence people by intimidation, by false criminal charges, threats and abuse of the courts.

Freedom of expression is larger than the First Amendment.  And it has to live in the hearts of the people to survive.  And, yes, I am afraid it is dying.

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Sidebar: Some have said that A&E had to do this because it would create a “hostile environment” for gay people.  That is a concept rooted in anti-discrimination law and it deserves several responses.  First, there is no federal law guaranteeing equal employment opportunities for gay people.  But there is one guaranteeing them for the religious.  Now depending on which jurisdiction we are talking about there might be state laws, but could a state law demand a form of equality that in essence demands religious discrimination?  It’s an interesting legal question.  Furthermore, as I noted earlier, he didn’t actually endorse discrimination or even disrespect.  He just expressed a negative opinion.  That is frankly not enough to create a hostile environment by itself.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.