A Non-Conforming Take on the First Amendment

I frequently hear, when someone feels they are being unfairly silenced, wholly specious claims that their First Amendment rights have been violated. A celebrated example was when, Phil Robertson, one of the guys from the reality show Duck Dynasty, made appalling remarks about LGBTQ+ people and atheists and the A&E network (very briefly) removed the show from their schedule. People who largely share Robertson’s homophobic views cried foul, claiming that A&E had violated his First Amendment rights. Many people pointed out that this was bullshit, but some for what I think are the wrong reasons.

The primary reason that A&E didn’t violate Robertson’s First Amendment rights is that the people who own and operate the network have their own First Amendment rights to decide which points of view they to associate with their network.

Since A&E was not the government, many believe that this could not be a First Amendment issue. While the First Amendment does protect freedom of speech from government interference, I don’t agree that only the government can violate First Amendment rights. I’ll get back to that point.

First, a remedial course in what it means to have “freedom of speech.” It means you have the freedom to speak, full stop.

It is not the right to be heard. Other people have a corresponding right to ignore you. While the right to speak is universal, the privilege of being heard is earned, either by being interesting, undeniably correct, and/or relentlessly persistent. This isn’t so much a constitutional issue as an unavoidable fact of life.

Freedom to speak is also not immunity from any form of negative critique. Once you have exercised your right to speak, anyone who has heard you (and even those who haven’t) are entitled to the opinion that you, sir or madam, are full of shit and these people have the same freedom of speech that you do, the right to share with you the opinion that you are full of shit. It is too common, especially among the delicate snowflakes of the right, to perceive criticism as a sinister plot to silence them, when other people just have the same freedom of speech that they do.

Which brings me back to my earlier question: Is it possible for someone who is not the government to violate one’s First Amendment right to free speech (or any of the other rights contained in that amendment)? Can a private party restrict a person’s freedom of speech in such a way and to such a degree that the aggrieved would have a legitimate First Amendment case?

The answer is not, in my opinion, a clear-cut yes or no. If the government does act to silence individual and take away their freedom to speak, then that is an obvious violation. But what if some entity that isn’t the government, yet has some form of power over the speaker, attempts to suppress that person’s freedom of speech? Is that automatically not a First Amendment issue simply because the entity is not an agency of the government?

First, let’s acknowledge that the First Amendment does two things with respect to the freedom of speech. First, obviously, it enjoins the government against infringing on the individual’s freedoms. However, in protecting freedom of speech against government infringe, the First Amendment effectively enshrines that right as a matter of constitutional law. In other words, our constitutional right to freedom of speech exists independently of our protection against government infringement of that right.

If, for example, you held a political position frowned upon by your employer, they would be entirely within their rights to prevent you from sharing your opinion in a company newsletter or on the corporate intranet. However, if you wrote a letter to the editor, or tweeted, or posted the opinion on your personal Facebook profile, and your employer threatened to fire you, demote you, or withhold promotions as a way to silence you in arenas of your life they don’t have claim to, then they would be acting through intimidation or coercion to suppress a recognized constitutional right because they don’t like how you are exercising it. In my opinion, the mere fact that they are not the government does not prevent this from being a First Amendment case. It would have to be very clear-cut, deliberate, and egregious effort to silence a private citizen for a non-governmental actor to trigger a First Amendment case, but it should be possible.

We all, supposedly, also have a constitutional right to vote. In the Jim Crow South, much effort went into preventing black Americans from exercising the franchise. Much of that effort was done by state and local governments through poll taxes and other laws, but there was also private action by the Ku Klux Klan and other racist organizations to intimidate African-Americans who tried to exercise the franchise. I think we can agree that the intimidation by private citizens was as much a violation of their right to vote as the unconstitutional acts of the state and local governments.

Therefore, if non-government actors can violate a person’s right to vote, it follows that the same is true for freedom of speech. I must admit, however, I don’t think there’s much in the way of case law to support my theory. That doesn’t mean I’m wrong.

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