Friday, December 27, 2013

Duck Homophobia: Lessons Learnt Part III

I am using the controversy surrounding the homophobic comments make by Duck Dynasty star Phil Robertson to look at free speech and to point out a number of confusions that surround this conception. I have, in my first two blogs on this subject, tried to argue that:

1. Support for equality and respect of difference is now so strong that homophobes try to defend their "right" to make comments with recourse to "free speech." What is important is that in the past they would not have needed this recourse. They simply could have made the homophobic comments and no one would have questioned them.

2. Those who would easily condemn A & E for suspending Robertson might want to look at the facts of the case. No one wants to defend infringements on free speech. Whether or not this is the case in this situation, however, is another matter. Robertson's ability to get his anti-gay message out has not in any way been infringed. Indeed, he has garnered an unusual amount of news coverage.

But, more than that, there is a real question in my mind about whether or not A & E is required to provide a forum for rich individuals (which is, to be clear, what Robertson is) to say whatever they want, whenever they want. Is that free speech? This is the subject I want to address in this blog. A & E is not a public broadcaster. It is a privately owned company. Does a privately owned company have any rights in this situation? This is not the same question as "was Robertson's right to 'free speech' infringed?" but the other side of the coin. Instead of asking what rights Robertson has, I am asking what rights A &E has.

This is important because I don't doubt that Robertson can walk down the street saying whatever he wants to whomever will listen to him, sending emails to whomever will read them, etc. He can make YouTube videos that speak to whomever wants to hear what he has to say. That is not the question and we should not confuse it because no one is denying that right. What we are asking about is the rights of the owner of the medium. Reading some of the defenses of Robertson, you would think that A & E has no rights whatsoever, but is that the case?

This is a tricky question, for sure. In the past, I have argued that private institutions do have the right to regulate the actions of people entering those institutions. This is all within reasonable boundaries, of course, and we might want to think about what constitutes "reasonable" but for now the principle that I am articulating is the following: private interest are under a different burden than public interests. Private businesses, for instance, have a right to insist that employees dress a certain way; private schools can legally and constitutionally impose dress codes (even though dress codes are self-evidently a violation of freedom of expression and are, in fact, intended to be so). Privately owned movie theatres (we have one here in Sackville) can pick and choose what they want to show. They are not required to put any particular movie on the screen. Private networks, in the same way, are not required to broadcast anyone's views that they do not want to broadcast because they are private. For instance, if CTV wanted its news anchors to dress a certain way, they have every right to say "you will dress this way." There are clearly complications (and, the devil might really be in the details on this one) but the point I am making is this: yes private institutions can -- within limits -- regulate expression.

In making this case, we need to understand that private institutions make rules regarding expression for all sorts of reasons. Sometimes, as in the case of Robertson and A & E, the reasons were political. Robertson articulated a political view with which the owners of the network disagreed and vehemently. They own the network; not him. They can decide whether or not he is an employee and they decided that he was ... well not, at least for a while. But, private institutions may make rules regarding expression for all sorts of reasons and this, too, is something that is important to understand before we condemn them for doing so. Many of these reasons have nothing to do with politics. For instance, some minor hockey associations limit the expression of fans at games (at least some of the signs I have see suggest this). They urge parents to be supportive, to not insult the referee or other players, and provide a good role model for their children. Some of the signs I have seen back this up with an implicit threat: if you violate these rules, we will ban you from the rink.

Here is situation where expression is clearly being violated but that violation has nothing to do with limiting free speech for any political reason (such as supporting equality for GLBT). Instead, minor hockey associations create limits in order to maintain order, encourage children to learn the game, and prevent potentially dangerous situations from getting out of hand. They are, in other words, not being political but focusing on public order and good manners (what we call sometimes sportsmanship). Those people who are arguing that Robertson's right to free speech has been violated would find themselves also opposed to sportsmanship and manners in minor hockey rinks. They may not like this equation but that is the logic of their positions.

Likewise, imagine that own a coffee shop. There are, in fact, a couple of nice coffee shops here in Sackville. Imagine, as well, that someone comes in and says "I want to play a set on Wednesday night." I say, "no, you can't do that." Have i infringed this person's freedom of speech. Technically, yes. I have stopped them from singing in my shop on Wednesday night. But, is that infringement without reason. Imagine that I stopped him from singing because I don't want to have live shows in my coffee shop because of the nature of my clientele? Do I have the right - as the owner - to make that decision? Again, the defense of Robertson people say "no." Anyone who walks up and wants to play can start doing it. I can do nothing about them or I infringe their free speech. Imagine, just to continue my example, that my coffee shop is a small business that is not opened on Wednesday nights because I cannot afford to pay staff (I hope to in the future, but have not yet built up enough of a business to do so right now). Am I required to open so that this person can sing?

The point I want to make is not to say that the owners of private interests have absolute right to do whatever they want. I hope that is clear because the logic of the argument I am trying to make is that those types of blanket statements really are to be avoided. I am trying to suggest that private institutions do have rights and so A & E did nothing inherently wrong in suspending Robertson.

To put this in other words, the suspension of Robertson -- however much it might grate some people - is not evidence in and of itself that Robertson's right to free speech has been violated. A & E -- as a corporate body -- retain rights. I think that those rights are not absolute -- and I'll get to those in another blog -- but for now I am suggesting that it private institutions can limit Robertson's (or, my) right to say things without necessarily violating constitutional protections of free speech.

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