A Brief Ethics and Culture Lesson For First Amendment Pedants


Thousands or pundits and web commenters, perhaps hundreds of thousands, in their concerted effort to justify the speech and thought police, (at least as long as the Enforcers are not likely to disapprove of their thoughts and speech), are mocking those who cite the First Amendment as authority for the proposition that the treatment of Donald Sterling, and others, are harmful, sinister, and un-American. The pedants are technically correct, of course. When someone who is fired for posting something offensive on Facebook screams, “My First Amendment right of free speech has been violated!”, that typically speaks of a poor civic education. The Bill of Rights only constrains government action, not private transactions. No rights, which are enumerated and protected from government incursions by the Constitution, have been lost or affected when only private action is involved.

That does not mean, however, that when private action opposes an individual’s Constitutional rights, it is necessarily acceptable, fair, harmless, reasonable or right. Indeed, the government and law serves a crucial function by delineating and encouraging cultural and ethical values. The principles articulated in the Declaration of Independence, the Constitution and the Bill of Rights do not merely constrain government. They form the basis of the ethical values that make the United States a unique culture, and point the way to what Americans, as Americans, regard as right and wrong.

Thus, while searching though a friend’s private e-mail account isn’t a violation of one’s right to privacy under the 10th Amendment, violating a fellow citizen’s privacy is wrong, and the Bill of Rights stands as authority that it is something important to each individual that should be respected. The Constitution and the 13th, 14th, and 15th Amendments won’t and can’t stop Americans like Sterling from being bigots in their private dealings, but they send a clear message that bigotry is not approved by the United States and was not by those who have charted our ethical course. Privately interfering with someone’s right to worship as they please is wrong, and the fact that the government is prevented from doing it tells us so. The First Amendment’s existence also tells us that preserving free speech—open, fearless, speech—is essential to core American values, because it also supports free thought, that which tyrants and dictators fear. Yes, we all have the right to make free speech, thought and discourse costly, difficult and painful, but we should not. We have the right to punish severely the non-conformist, the iconoclast, the rebel, or the citizen who may be a little late, or slow, or reluctant, to accept the conventional wisdom of the moment. We have the right to do it, but it is wrong. It is un-American. The Constitution tells us so.

Addendum: After I wrote the post, I encountered this.


14 thoughts on “A Brief Ethics and Culture Lesson For First Amendment Pedants

  1. True, but now we have some people targeting the owner of the Orlando Magic.

    His crime? He’s opposed re-defining marriage to include same-sex couples.

  2. Kogan’s entire argument appears to be “if I agree with the outcome then it is perfectly OK, but if I don’t then what happened was wrong.”

    I do so love people like that…

    • That is all.

      Oh, well then, that settles it…

      I mean, the smarmy, liberal comic-strip writer has, made his opinion clear, and so conversation over

      Look, I generally like Randall’s work – I’ve been a fan since before he broke the 500’s or so – but he has over the last couple of years taken an exceedingly sanctimonious tone to some of his strips.

      He likes the idea of someone “being shown the door” because he doesn’t like the message or views of the person being shown the way out. Just like Mark Krogan, he likes it when the outcome is one he likes, but would be very much against it if it lead to an outcome he didn’t agree with.

      Either you support the mob mentality, or you don’t. You don’t get to fucking pick and choose when it is appropriate – either the discordant mob decides who lives and dies, or they don’t.

      Pick one, and pick carefully.

      • I’d be more inclined to question whether or not this whole procedure might involve some sort of lack of due process? It still isn’t a government involved, but he has been deprived of “happiness” (watching his team play, live) without any chance to present a defense.

        • It all has to do with what his agreements were as a condition of owning an NBA club. If he violated ownership conditions that he agreed to, then I doubt he has much legal recourse, despite making the process long and messy, as well as embarrassing and expensive. The danger for the NBA is if Sterling claims the standards are being disparately enforced. Some have suggested that he will use discovery to prove that other owners have given evidence of racist attitudes or worse that have been ignored by the league, and this would blow everyone and everything up. And this could seriously affect everything from the popularity of the league to revenue to salaries. Personally, it would please me no end to see the NBA stars take a financial hit from their hypocrisy and grandstanding on this issue.

          Baseball, because the Commissioner had blanket power to do whatever he thought was in the “best interests of the game,” was the one sport that could have avoided this kind of mess in the past. The Commish’s power there, however, is not what it once was.

          • Thanks for the clarification. I have to tell you, though this whole thing bothers me a lot, from what Sterling said to the obvious over-reaction by the politically-correct NBA to a sports league (of any sport) caving to political pressure.

  3. Including how the whole thing became public. I guess it just proves that as we get older, we need to be more careful…about EVERYTHING!!!

  4. I would never defend Sterling, but…

    I have always assumed — rightly so — that we can’t legislate thought or speech, or punish citizens for their beliefs, however horrible we think they are. There will always be bias; there will always be prejudice. We CAN, and have, and do, legislate against behavior based on bias and prejudice that has been deemed illegal… E.g., the Voting Rights and Civil Rights Acts of 1965.

    And why is it all right for the Al Sharptons of the world speak freely about race, hate, and the horrible white Republicans who are ‘out to get them?” He has built a career on racism and hate. Who’s going after him? And who’s going after the American Nazi party? They both rely on the Constitution, don’t they?

  5. The first amendment protects freedom of speech. It does not define it. Freedom of speech can be violated, even if no government actors are involved. The first amendment only says the government isn’t allowed to be one of the violators. The pedants are only correct if they are responding to the phrase “first amendment” and XKCD’s comic is incorrect on this point. There’s something satisfying about pedantically correcting incompetent pedantry.

    The bill of rights mostly doesn’t create rights. It calls out certain preexisting rights for protection. The only exception that comes to mind is the right to counsel, and even then I think it’s plausible that it wasn’t intended as a positive right, only to bar the government from making it illegal to use a lawyer.

  6. Free speech and thought and Freedom of Conscience MUST not be legislated, no matter how disgusting and unpopular.

    At one point in our history, the mention that “Black people are humans and should be afforded equal protection under the law” would have gotten the same public reaction that Sterling’s private comments garnered.

    All of this Sterling smokescreen is to drive a key Democrat platform narrative — that America is still a nation governed by racist ideals and enforced by a racist political design. During an election year that is generally unfavorable to Democrats, given the colossal failure of their Socialist designs on a massive component of the Free Market, given the litany of scandal after scandal after scandal, given the lock step complicity that Democrats across the board have given to the Administrations lack of transparency and its outright lies, the Democrats MUST MUST MUST keep the narrative on America being evil and corrupt, therefore the greater goal of “fixing America’s racism” is more important than all the wrongs and failures of Leftist policies.

    You see this is the hopelessly false “unequal pay for women” arguments as well.

    If this were an off year or a period of wild Democrat success stories (which there really aren’t those anyway, without gross obfuscation or outright forgery of “success criteria”), this Sterling story would be back page and forgotten in a week.

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