Free Speech vs First Amendment Rights

01 Oct
October 1, 2017

This post has its genesis in the recent kerfuffle over football peoples kneeling during the national anthem to protest the perceived epidemic of blacks being killed by police. I’m not going to address the players’ complaints or Trump’s narcissistic need to inject himself into the fray. Discussing this is difficult because it doesn’t just hit hot buttons all over the spectrum – it slams into those hot buttons like a SWAT team doing a drug raid.

TL;DR – Although there are some touches on the First Amendment since the president felt the need to fling himself in with his normal wild abandon or dignity or common sense, the main issues are the people politicization / tribalism of everything and a degrading of free speech in our culture.

I’ve seen too many commentators equate the First Amendment and free speech. Although they’re linked, it’s similar to the link between the Second Amendment and the right to self defense. The Amendments are there to restrain the government from putting laws in place that would prevent people from exercising the underlying rights. Until this last week, this was not a First Amendment issue because the government wasn’t trying to stop the players. Of course, then Trump stormed in – either because he’s unable to have a national story not be about him or because he’s redirecting the media’s almost Pavlovian response to anything he does away from other stories. Before the gentle readers try to remind me that the government is not sending its agents to stop the players, I would like to remind them the incredible reach of the government. This is especially true for the NFL, since they are dependent on their current exemption from anti-trust laws (that’s a whole other rant). When the head of that monstrous apparatus decides to weigh in, there can be a chilling effect. An indirect rather than direct governmental infringement on speech. Overall, as of this writing, the First Amendment application remains the lesser of the issues. This is still more a cultural issue.

There was an old Soviet saying of “Everything within the state, nothing outside the state.” Over the past few decades, this describes the growing divide in America. Except instead of the state, it’s nothing outside the tribe. Yes, I know the dangers of over-generalizing, but it does seem most of the population is being drawn into two tribes whose members share a general worldview and values. Over the last ten years, the tribes are becoming less rivals and more enemies. I’m not the first person to make that observation, and I don’t think we’re on the brink of a second civil war.

One of the fall outs of this hyper-tribalism is a chilling of free speech, particularly in every day interactions. For example, one of the attacks leveled at the players is that it is inappropriate for them to protest at their job. Why?

Is it because our culture has conditioned us that we don’t discuss politics in the workplace so as not to alienate customers or fellow workers? I know that’s one of the reasons I don’t discuss politics with my coworkers. I can easily see how in this day of weaponized speech, a firm would try to protect itself with a blanket culture of no speech on controversial topics.

Unfortunately, I don’t see sanity breaking out among the chattering class that define the cultural battles between the tribes. I can only hope that we do so on the day to day level – and for that I’m optimistic.

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