Sarah Palin and Bobby Jindal's "Duck Dynasty" screeds twist the Constitution

The former Alaska gov. and current Louisiana gov. cite the First Amendment -- and totally misunderstand it

Published December 19, 2013 5:05PM (EST)

Sarah Palin is angry about the suspension of "Duck Dynasty" star Phil Robertson over his anti-gay remarks in a GQ interview -- and she thinks her constitutional rights are at risk.

On Facebook, Palin posted a photo of herself meeting the "Duck Dynasty" cast with the caption:

Free speech is an endangered species. Those “intolerants” hatin’ and taking on the Duck Dynasty patriarch for voicing his personal opinion are taking on all of us.

Palin is hardly alone -- the post has, as of this writing, some 244,000 "likes." And yet Palin entirely misunderstands the First Amendment idea of free speech, which prohibits Congress from making any law restricting Robertson's right to speak out but doesn't protect him from consequences of that speech. A&E's suspending its actor has absolutely nothing to do with the law of the land and everything to do with limiting its exposure to advertiser boycott and viewer protest, which is itself another type of speech.

This mischaracterization of the First Amendment should come as no surprise. In her recent book "Good Tidings and Great Joy," Palin cites her publisher's, News Corp. subsidiary HarperCollins, decision to continue its affiliation with Chick-fil-A during a flap over the restaurant chain's opposition to same-sex marriage as proof that "freedom of the press was alive and well." Never mind that the only reason HarperCollins might have ended this affiliation was due to people speaking out in an unofficial capacity, not because of any government intervention.

Bobby Jindal, the governor of Louisiana (where "Duck Dynasty" is shot), has spoken out too and along the same counterfactual lines. Per Jindal's statement on the matter: "I don’t agree with quite a bit of stuff I read in magazine interviews or see on TV. In fact, come to think of it, I find a good bit of it offensive. But I also acknowledge that this is a free country and everyone is entitled to express their views. In fact, I remember when TV networks believed in the First Amendment. It is a messed up situation when Miley Cyrus gets a laugh, and Phil Robertson gets suspended."

But Miley Cyrus gave youth-oriented MTV exactly what it wanted -- controversy -- and Phil Robertson gave more staid A&E exactly what it didn't want -- controversy. In aggregate, viewers and advertisers speak with their eyeballs or wallets; this sort of response to a person's speech is exactly what free speech and the give-and-take of ideas is about. Laura Schlessinger has cited the First Amendment when protesting listeners took umbrage at her use of the N-word. And after Juan Williams was fired by NPR for anti-Muslim statements, Fox News' Roger Ailes, another of his employers, said, "He’s an honest man whose freedom of speech is protected by Fox News on a daily basis." Williams' freedom of speech was never violated by NPR -- he had the right to speak as he wished, and he continued to do so without any legal reprisal. He just was no longer welcome on NPR's own air, the very sort of reprisal that freedom of speech implies.

Freedom of speech doesn't mean that one is entitled to a job in perpetuity in spite of incendiary statements. One's employer -- if that isn't the government -- has a right to react to one's statements, just as people have a right to be angry and stop watching "Duck Dynasty" or listening to Schlessinger or Williams on the radio. Palin and Jindal, ironically, are seeking to quash everyone's speech but the people, the anti-gay Robertsons, with whom they happen to agree.

By Daniel D'Addario

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Bobby Jindal Duck Dynasty Sarah Palin