Thinking Out Loud: Freedom Speech, Good and Bad, In the Law and in Politics

 

“Do justice, Sir!” – Judge Learned Hand to his friend, Supreme Court Justice Oliver Wendell Holmes, Jr.

“That is not my job, Sir. My job is to uphold the law.” – Holmes’ reply

The Founders knew the Constitution was not perfect, which is why they included an amendment process, and they also knew that what is allowed under the Constitution will not always be fair to everyone. The Founders’ priority was individual liberty, not fairness — life isn’t fair and never will be — and to that end, the Constitution protects certain behavior that may seem unjust, and will often be unpopular.

Free speech is a perfect example of this. Cliven Bundy, the Nevada rancher who refuses to pay the millions in cattle grazing fees he owes the federal government, and Donald Sterling, the billionaire owner of the Los Angeles Clippers, have both uttered hateful, racist speech that is morally indefensible. But it isn’t unconstitutional. Neither Bundy, who implied that blacks might be better off returning to slavery, nor Sterling, who rebuked his girlfriend for bringing black friends to watch his Clippers play basketball (under a black coach and with four blacks in the starting line-up), have said anything that violates the Constitution or the law, and therefore they are perfectly in their rights to utter such comments.

But there is the law and there is politics. Since Bundy made his racist remarks his political support has imploded, and a rancher who was originally seen as a hero for defying an overbearing federal government is now seen as a bigoted nut job.

As for Sterling, while the government can’t punish him for his remarks, his fellow NBA owners and the NBA commissioner are another story. When he bought the Clippers, Sterling agreed in writing to accept punishment for engaging in any conduct unbecoming a team owner, and/or any conduct harmful to the sport and its image. As a result, NBA Commissioner Adam Silver quickly banned Mr. Sterling from the NBA for life and fined him $2.5 million. And his fellow owners have stated their intent to force him to sell the Clippers.

This actually fits nicely with the designs of the Founders. There is the court of law, and there is the court of public opinion, and it was intended that they function separately. Except in rare cases (you can’t falsely yell “Fire” in a crowded theater, being the most famous example), free speech should always be protected from legal consequences because it is both a fundamental right and a liberty. But in the marketplace of politics, of ideas, of opinions, social interaction and cultural norms — and perhaps most of all, literally in the marketplace — there will always be, and there should be, other consequences.