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Posted by on Jan 5, 2014 in Blackacre, Civil Rights, Constitutional Rights, politics, Progressive policy, Public Policy, Uncategorized | 2 comments

Freedom of Speech

Some of our most sacred constitutional rights are found in the 1st Amendment of the U. S. Constitution which reads:

“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.”

It has been argued that of these six rights, freedom of speech i.e., the right to say what one feels, to disagree, or to criticize the government is the most important. Freedom of speech not only guarantees all other rights but is the cornerstone upon which our republic rest.  

But what does it mean to have freedom of speech? What does this right entail and what if any are its limitations? Recent statements by those in the public eye provide ample reason to examine the subject.

In one corner we have Phil Robertson of the A&E reality TV show Duck Dynasty, who from a freedom of speech perspective apparently has no off switch. For example, a recent video surfaced where he stated that grown men should marry girls 15 to 16 years old. If this weren’t bad enough during an interview with GQ magazine, he opined on both gays and African Americans. In a response to a question about sinful behavior, Robertson stated:

“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. It seems like, to me, a vagina — as a man — would be more desirable than a man’s anus; that’s just me,” “I mean, come on, dudes! … It’s just not logical.”[1][1]

In the same interview, he commented about African Americans apparent happiness living in the Jim Crow South. 

“I never, with my eyes, saw the mistreatment of any black person. Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field …. They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’—not a word! … Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues.”[2][2]

In the other corner we have British journalist and a former host of MSNBC. Martin Bashir. In response to remarks by Sarah Palin concerning slavery, Bashir said (among other things), that someone should defecate and urinate in Palin’s mouth, a punishment delivered to some slaves.[3][3]

Both comments caused a public firestorm. Both had their defenders and detractors some more than others. Phil Robertson retained his position with A&E after Chris Stone, founder of Faith Driven Consumer, exercised his own right to free speech. He and his organization gathered 260,000 petition signatures arguing that he and individuals like him would “remain vigilant as they measure whether A&E’s actions reflect true tolerance, diversity, and mutual respect — including their equal embrace of our biblically based values and deeply held beliefs.”[4][4]

Interestingly enough, Robertson’s racial comments escaped public scrutiny. Neither Mr. Stone nor any other Robertson supporter addressed the issue. “In the rush to support Robertson for his beliefs about sexuality and sin, most conservative Christians seem to be ignoring this comment. Maybe they were too quickly swept up in the culture-war angle that dovetails with the community’s martyr complex. Or perhaps talking about the atrocities of the Jim Crow South reminds them that it was their theological forbears who perpetuated such injustices.” [5][5] The aforementioned “biblically based values and deeply held beliefs” apparently do not include Robertson’s revisionist view of happy Negro’s reaping the affirmative action benefits of Jim Crow.

The media’s failure to address these comments is also telling. “Perhaps a civil-rights story doesn’t generate as many clicks as conversations about homosexuality. Regardless, it’s the story that is being overlooked in the Robertson ruckus, and it’s the one we can’t afford to miss.[6][6]

Martin Bashir was not so fortunate. His side of the political spectrum did not come to his defense. Nor did the media ignore his faux pas. And the same forces that defended Robertson’s freedom of speech rights, and argued so passionately for “true tolerance, diversity, and mutual respect”, made no such arguments when it came to Bashir. They instead decried his comments as disgusting, misogynist, even racist and accused MSNBC of having a double standard. Bashir’s resigned from MSNBC shortly after his comments.

The purpose here is not to point out the hypocrisy of the left or the right or to make false equivalencies and comparisons between the two. From Mel Gibson’s drunken racist and anti-Semitic screed, to Paula Deen’s alleged liberal use of the N word, to black rappers obsession with the term, to Jessie Jackson’s ‘Hymie Town” remark, to Sarah Palin’s comments about slavery, to some politicians ill-timed remarks about abortion and rape, to Tracy Morgan’s rants about gays and those with disabilities, to some of the stupid things I have said, someone is always saying something that is ill-conceived, mal-intentioned and blatantly offensive. The purpose is to instead set the free speech record straight.

We do indeed have the right to express our beliefs, either verbally, visually, in print or symbolically sans censorship, prior restraint or interference from the government. The government may not prohibit us from expressing ourselves or prevent us from receiving another’s expressions. Nor can it force it citizens to communicate certain views, or compel us to adhere to any ideological perspective with which we disagrees. We are free to think as we please and say what we want including the most stupid, reckless, feckless and inane things imaginable.

Constitutionally protected speech therefore need not be popular, well reasoned, intelligent, informed, persuasive, positive or cogent. Speech can be and often is offensive, even insulting. That we are big enough to tolerate if not learn and grow from distasteful speech is a testament to the American spirit.  

Be advised however, that while constitutionally based, this right is not absolute. The exceptions and limitations imposed on free speech are manifest. These include but are not limited to: 1) child pornography and/or speech harmful to children, 2) obscenity, 3) time, manner and place restrictions, 4) speech that poses a clear and present danger, 5) speech that constitute fighting words, 6) false statement of fact, e.g. falsely yelling fire in a crowded theater, 7) false advertisement, 8) defamation, 9) speech owned by others, 10) judicial restraints including injunctions, restraining orders, or court orders related to insuring fair trials, 11) restrictions regarding the special capacity of government, e.g., war and the military, jails and prisons, public employees and licensed professions, 12) health and public safety limitations, 13) speech involving criminal or illegal activities, e.g. conspiracies and 14) other legal restrictions including contracts, employment and agency-principal law.

More fundamentally, the 1st Amendment supplies no immunity from the negative results of free speech even when what was said, written or displayed is truthful or appropriate. There is no constitution right to avoid the unpleasant consequences of free speech or the personal responsibility that comes with the exercise thereof, some of which can be downright nasty if not dire. Stated differently, one cannot engage in objectionable speech and then claim to be mistreated, wronged or victimized merely because another disagrees with or negatively reacts to said speech. 

The blow back and suspension of Phil Robertson by A&E and the criticism and subsequent resignation of Martin Beshir are therefore not questions of free speech. Nor do said suspension, criticism and resignation constitute violations of their constitutional rights. Neither was prevented from saying exactly what they wanted say, when they wanted to say it. They were simply called to tasks by those who took exception to their comments.

In short, freedom of speech is anything but free. We are all responsible for the hurtful, irresponsible or just plain stupid things we say and speech can come with a material cost. Let us hope that it remains so. The give and take, the thrust and parry, the punch and counter punch of opinion and communications is precisely what the framers of the constitution intended. The balance between free speech and personal responsibility for the exercise thereof must forever remain our constitutional rights notwithstanding.

Leo Barron Hicks, Founder and CEO of the Blackacre Policy Forum









[6][6] Ibid.


  1. This was an excellent discussion point posed in the forum Mr. Hicks.

    Firstly I will say this, everyone is entitled to an opinion. Its validity to others is not of any interest to me what so ever. Like it, love it, or leave it is inconsequential-people can make up their own minds what to take to heart. Why would I have my feelings hurt from listening to a personal opinion of another person. I will say this though, making big deals out of these things do an excellent job of distracting the masses from addressing any real problems. Why worry about changing, moderating, or suppressing another persons belief system that they are entitled to? If they have a mouth, they can say what they want. As long as they are not hurting anyone in the process physically or threatening to do so. If you don’t agree with it, shut up, or voice your own opinion, but by all means KEEP IT MOVING!

    As we have all seen in the last 60 years, someone will always be “butt hurt” by the opinion or position of someone else. I have seen interpretations of the law in the last 40 years so broad that judges are now settling lawsuits for emotional trauma from words (I.E. Hurt feelings). Whatever happened to developing a strong independent mindset. Oh, I know what happened to it…we found another way to make people even weaker.

    • Agreed. The point of the post is that there is a real and material difference between freedom of speech (the constitutional right to say what you please) and free speech (the notion that any rebuttal, disagreement or negative reaction to what was said), is somehow unfair or improper. Not even constitutional rights are absolute. Thanks for the feedback.

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