This era of political discontent has seemingly made us all experts on the First Amendment and freedom of speech. Or at least, there’s a lot of complaining about one news event or another that provokes widespread sentiments that our constitutional right to express ourselves is being trampled from the left and the right, whether it involves Roseanne Barr’s unwillingness to control her behavior, or the NFL’s rules on taking a knee.
Occasionally, those complaints are valid. There are legitimate concerns, for example, about the ability of conservatives to speak at public college and university campuses.
Clearly, we need to do a better job of teaching civics throughout the years of public school. Freedom of speech doesn’t mean what most people obviously think.
But the First Amendment has become a colorful flag to wave at all sorts of opportune moments. “So much for our First Amendment rights,” people grumble on social media and the comments sections of news stories every time they don’t like the consequences that people faced for expressing themselves.
Clearly, we need to do a better job of teaching civics throughout the years of public school. Freedom of speech doesn’t mean what most people obviously think. A person is banned from Twitter for abusive tweets and suddenly the Bill of Rights is in deep trouble.
That’s what people claimed two years ago, when ultraconservative agitator Milo Yiannopoulos was thrown off Twitter for an abusive, racist campaign targeting comedian Leslie Jones. And nobody was complaining louder than Yiannopoulos himself. No surprise there.
“Some people are going to find this perfectly acceptable,” he told the New York Times. “Anyone who believes in free speech or is a conservative certainly will not.”
So mark him as yet another person who doesn’t get it. Yiannopoulos never had an inherent right to use Twitter to say whatever he wanted.
Free speech as defined by the U.S. Constitution covers only the relationship between the people and their government:
“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 wording invokes restrictions only on Congress, which has been read broadly by the courts to mean government in general. Twitter is a private enterprise – and also one that has several stipulations to which people must agree in order to join, though there are probably about three people worldwide who actually read those agreements instead of just clicking the box next to the words “I agree.”
Yiannopoulos’ right to free speech was completely intact. As far as the government was concerned, as long as he didn’t represent a threat of government overthrow or immediate danger to others, he was within his rights to act as foully as he chose – or generally chooses.
Twitter, however, owed him nothing. Nor any of the other people it has suspended or banned for abusive behavior during the past couple of years.
Two more recent events illustrate that the misunderstanding of free speech comes from both the right and the left: The NFL decision to essentially ban players from taking the knee during the national anthem, on penalty of being fined, and Roseanne Barr’s show being canceled because of an ugly, racist Twitter rant.
“This is a First Amendment issue,” liberals darkly stated on social media about the NFL decision. “What happened to free speech?” cried conservatives about Barr.
But the NFL decision was, at least as far as we publicly know, a decision by a private organization. It has the right to set rules for its teams and players, even if the rules stink. There are mutterings that the rule is a result of political pressure from the White House or its allies, but if that’s true, it’s the NFL’s job to stick up for its players – if it chooses to do so – and stand for its First Amendment rights.
If there was such pressure, and if the NFL had rejected it and stood up for its players, the government could not have stopped it. If there was government retaliation against the NFL, there would certainly have been a case for a violation of the First Amendment. But we’re many steps away from that.
Similarly, Barr is free to continue her indecent mouthiness. If she keeps doing it on Twitter, she might find herself shut off from her easy access to the public, but Barr was good at fomenting outrage over one mindless thing or another, long before Twitter existed, and she’s unlikely to stop now. The government won’t interfere with her, but ABC is a private entity that doesn’t have to go along.
Have people seriously thought that they had an absolute right to free speech without repercussions from the private sector? If they work for a widget company, though those have probably all been outsourced to a developing nation by now, they’d be ill-advised to start making public statements deriding the company’s widgets as inferior junk.
We give up our rights to free speech on a frequent basis. Non-disparagement clauses in contracts are common. People who settle lawsuits out of court frequently sign non-disclosure agreements. Public lawsuits, but a private agreements.
We’re having enough trouble with the First Amendment these days without misunderstanding what it is in the first place.
Karin Klein is a veteran California journalist and commentator. She can be contacted at firstname.lastname@example.org. Follow her on Twitter @kklein100.