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.
