Yesterday's firing by NPR of commentator Juan Williams based on offensive remarks he made on Fox (well-diaried by Squareboy) was the latest in a long line of disciplinary acts against on-air talent for comments deemed offensive or inappropriate. Many Kossacks and other progressives are hailing NPR's action, while condemning the explosion of corporate-funded ads in the wake of the Citizens United decision. Are these views consistent? No. And there is a better approach.
Free speech is so important to the function and foundation of the American democracy that, while it wasn't explicitly protected in the body of the Constitution, it was part of the first amendment to our key legal work:
Amendment I
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.
The right to speak freely, and the associated rights (such as to anonymity) that have been described by our courts, are not absolute. As with all constitutional provisions, free speech may be limited by government provided it demonstrates a "compelling state interest" and does so in the least restrictive manner. Common examples of speech that may be prohibited or limited include defamation, obscenity, and incitement. Yelling "fire" in a crowded theater is not prohibited, though, absent an intent to incite panic and cause harm through a false report, as stated by Justice Holmes in the 1919 Schenck v. United States case:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
The First Amendment's protection also varies for different types of speech. Political speech, the inherent reason for the protection being included in the Constitution, is most strongly protected; commercial (i.e. business-focused) speech less so. The medium through which the speech is delivered matters as well. Print journalism, which is protected both as speech and through the reference in the First Amendment to "the press," gets the broadest protection; radio and television broadcasts using (limited) electromagnetic spectrum, which is licensed by the FCC and meant to serve the public interest, faces much stronger restrictions on content; subscription services, through which users have greater control over what content they can access, fall somewhere in between. Speech via the Internet has been treated differently depending on context, intent and other factors (e.g. are/should blogs be covered by journalistic "shield" laws). Finally, the protections of the First Amendment are only against governmental action; they do not limit private infringement of others' speech.
From Williams' firing to the recent termination of Rick Sanchez after his statements about Jews in the media on Pete Dominick's Sirius/XM POTUS show, going back to Randi Rhodes' suspension from Air America after she criticized Hillary Clinton in a live standup comedy performance, to actions taken against Don Imus and Greg (Opie) Hughes and Anthony Cumia for their (or their guests') on-air comments, broadcasters have found themselves punished for speech. When an organization punishes a broadcaster based on statements he or she makes either on-air or elsewhere, it raises two questions: did the company have the right to do so, and was it right (that is, correct) to do so? As to the first, unless the employer in question is part of a state or the federal government, the First Amendment is not directly involved; it starts as a matter of state contract and employment law. A governmental employer, by contrast, may face additional requirements and restrictions under the First Amendment, even for what would otherwise be a "workplace" issue.
As to the second question, though, the progressive answer may not be so clear cut. Are racist and biased comments reprehensible and deserving of scorn? Of course. When the employer, though, takes action, it is essentially speaking in its own corporate voice, condemning the statement publicly by disciplining the speaker. In lauding that type of response, though, aren't progressives supporting exactly the same profoundly flawed rationale that is at the heart of the Citizens United opinion, namely that corporations' opinions are equivalent to those of individuals in constitutional protection? After all, both the broadcasting companies and corporations giving to PACs claim that they are acting to maximize profits for their investors. The problem is that the investors might not agree with the methods used.
Consider that individual shareholders of CNN, or for that matter donors to NPR, may in fact agree with the opinions expressed by the employee who gets fired. Is it any more correct or fair for the media company in which they've invested to act against those who share their views than it is for companies in which progressives hold shares to make contributions to Karl Rove's PAC or the Chamber of Commerce? How can CNN's firing Williams be a progressive act, but some public corporation's funding an attack ad against a Democratic candidate be condemned? In both situations, a board of directors and executive team may be using an investor's funds against the investor's principles. That is consistent neither with the idea of free speech generally, nor with the individual empowerment which is a core progressive ideal.
Instead, a truly progressive, consistent perspective is to use individual speech to counter other individual speech. Rather than applaud CNN or NPR for firing their offending personalities, we should be demanding that those networks provide time and opportunity for those who have been maligned and offended to respond directly. Imagine if Rick Sanchez had been required to spend a week as a guest on his own show, while Jon Stewart took the host's chair, engaging Sanchez in calm but direct conversation and bringing on other guests such as respected Jewish leaders and experts on anti-Semitism to highlight the wrongness of his expressed attitude? Or if Don Imus' show had been broadcast for a week or two live from Rutgers University, with the members of the women's basketball team sharing the microphone? How much more effective would those responses have been than the apologies, condemnation and quick (and easy) discipline we got instead? And how much more would that have potentially been consistent with all shareholders' views?
The Citizens United decision was an abomination, a lowlight of judicial "activism" and a blow to the free speech rights of investors and employees of those now free-spending corporations. As progressives, we did and do properly condemn the opinion and its result. For consistency, and as a true expression of progressive ideals, we should decry not only the offensive statements of broadcasters like Juan Williams, but the summary dismissals by their employers that diminish rather than promote the powerful value of our First Amendment right to free speech. {ProfJonathan}