Phil Robertson and an American's Constitutional right to free speech

Are Phil Robertson's constitutional rights to free speech being violated by A & E and those that oppose his views? Photo: Phil Roberts / Duck Dynasty

LOS ANGELES, December 19, 2013 — Are Phil Robertson’s constitutional rights to free speech being violated by A & E and those that oppose his views? A recent reader left a comment stating that she was disappointed with an article I wrote on the subject because I didn’t talk about the First Amendment. “You can do better,” she said.

Why? In reference to Phil Robertson it’s not even slightly applicable. To say it is would be parallel to the Supreme Court laying out rules in landmark cases that have absolutely nothing to do with the case before them.

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In Hamdi v. Rumsfeld, the Supreme Court felt compelled to use their own commentary as a means to legislate from the bench ways in which the federal government could indefinitely detain US citizens.

In dissent, Justice Scalia and Justice Stevens wrote that the Supreme Court’s ruling was extra-constitutional because the Court had no right to provide such commentary as rule of law to indefinitely detain citizens.

So, here’s the commentary outside of the news article – where it belongs:

First, we must examine the groups making these claims. They are conservatives, and most conservatives claim to be free-market supporters. I am also a conservative (more so a “conservatarian”), but those making these claims are wrong, and their claims demonstrate an unclear understanding of the free-market.

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When Chick-fil-A’s CEO Dan Cathy made anti-gay comments, before donating to traditional marriage groups, conservatives criticized liberals who protested Chick-fil-A. “It’s a private business. Deal with it,” conservatives shouted.

However, now the tables have turned. Today, conservatives are screaming, “First Amendment rights!” Meanwhile, from those same conservatives, hardly a trickle of non-biased commentary is provided. It seems they lack a neutral tone in support of the free-market.

Do you support the free-market or not? Either you believe in private enterprise, or you believe that laws should govern the market. No ambiguous middle ground can exist here. Why? The very moment that one violates the underlying principle of free-market capitalism in pursuance of supporting individual values is the moment when the principle of economic liberty is destroyed. Moving forward, all with differing values will pursue law and government intervention in order to achieve these values.

This is the philosophical argument.

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The lawful argument is simple. No one’s First Amendment rights were violated in this particular case. The Bill of Rights is applicable to laws passed by the federal government, and the federal government alone. The Bill of Rights was intended to keep the federal government from becoming too strong– not state governments and certainly not private businesses.

The Supreme Court has held multiple times that the Bill of Rights was not, and was never intended to be, incorporated to the individual states by means of the Fourteenth Amendment.

In Adamson v. California, Justice Frankfurter wrote that the idea of incorporation would, “tear up by the roots much of the fabric of law in the several States, and would deprive the States of opportunity for reforms in legal process designed for extending the area of freedom.”

Either you support a limited federal government, or you do not. We already know that the Bill of Rights is applicable only to federal law and not state law. If we know this as constitutional truth then why would anyone make the argument that A&E, as a private business, violated Robertson’s First Amendment rights? There is no rule of law to give warrant to such claims.

Governor Jindal (R-LA) took to Twitter with his First Amendment argument, and even paid to have the tweet promoted. It reads, “I remember when TV networks believed in the First Amendment.”

If Jindal doesn’t know that the First Amendment applies only to federal laws, and not to private enterprise, then I’m not sure how he believes he is a limited government, free-market kind of guy.

Other conservatives have argued A&E violated Title VII of the Civil Rights Act, which makes it unlawful for employers to discriminate against religion, sex, national origin, etc. However, when a conservative business makes headlines for not hiring a gay individual, many scream in dissent. Now the tables are turned and conservatives cite the Act in support.

Many parts of the Civil Rights Act are unconstitutional (in violation of the Ninth and Tenth Amendments) and anti-capitalism. Conservatives are more than willing to agree with that, unless an avenue to spread their values becomes available through the Act.

Stating that parts of the Civil Rights Act are unconstitutional immediately gets you labeled as a racist. I would remind those who would label me racist to recall that not too long ago the federal government stepped outside of its constitutionally delegated authority to label a black man a piece of property and not a human (Dred Scott v. Sandford). This same man, or “piece of property,” as the federal government labeled him, was provided refuge by state governments, but the feds weren’t having it.

The United States federal government is the most racist entity in the world, but that’s another story. Most important, the Robertson family are independent contractors, not direct employees of the TV network.

In regard to free speech, until you are willing to fight to your death to defend someone else’s right to say something that you, as an individual, disagree with in every fiber of your soul — you cannot say that you support free speech. If you do not fight this fight, then you only support free speech when it is speech you agree with, which is certainly not free speech at all.

This goes for those who support and oppose Robertson.

I support the Robertson family and everything they stand for. However, I certainly do not support the claims that their rights were somehow violated. In fact, as a free-market success story, they’d probably agree with my sentiment.

I would argue that if you are truly upset with A&E, do not look to unconstitutional laws or the federal government for resolution. Look to the market. Chick-fil-A brought in record earnings after they were attacked by the left.

Many of those who watch “Duck Dynasty” are of the conservative, tea party, libertarian fabric, so simply turn off your TV and A&E will suffer greatly.

This article is the copyrighted property of the writer and Communities @ Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

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Michael Lotfi

Michael Lotfi, political analyst and adviser, is a first generation Persian-American. Lotfi's father, a man who sought refuge in America during the Islamic Revolution of Iran, met a Southern belle in the Deep South woods of Savannah, and the two joined lives.

Together, they raised a son who grew to share his father's dream for religious, economic and civil liberty.

Lotfi graduated in the top 5% of his class with honors from Belmont University, an award-winning private university in Nashville, Tennessee, where Lotfi currently lives and is the state associate director of the Tenth Amendment Center.


Contact Michael Lotfi


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