Free Speech Issues That Aren't: The Suppressed Speech of Don Imus

Sometimes a dangerous toolIf someone pays you to speakor writedoesn't that make it paid speech? If the concept of free speech even enters the equation, isn't it in the context of the employer?

The question has, of course, everything to do with whether or not Don Imus' comments qualify as protected speech. Like the Blogospheric Badge of Courage controversy, this also strikes me as more of a configuration issue than one of free speech.

When he made the comments, Mr. Imus was operating at the bottom of a three-tier system: he was the employee of a company funded by advertising for products sold to the general public. When the program's advertisers withdrew their financial support, it was an expression of the perceived will of their customersthat's you and mewho aren't willing to pay for Product X if the money is going to wind up paying for ads that pay the company Imus works for, because that's how they pay him, too. In effect, the consumer refuses to pay Don Imus $10 million a year to make racist, sexist comments about college kids. Since Mr. Imus was configured, at the time, as a paid spokesman for two separate entitiesthe companies he worked for directly, and the companies that had paid for advertisinghis words became their responsibility. It wasn't free speech; it was paid speech.

Still, it would be fascinating to test the hypothesis. Now that he's a free agent, Mr. Imus might consider walking the streets of Washington D.C. with a bullhorn, repeating the words he uttered on his show. Would it be protected speech? If not, what lessons might be learned from the experience?

 

2 comments:

  1. Yours is a very interesting take, although I worry about dangerously blurring two separate legal questions. I agree that advertisers have free will to discontinue contracts with anyone for any reason. And to the extent that any company can trace back a loss of revenue to the specific actions of one of its employees, it has every right to terminate him. But are you suggesting that walking the streets with a bullhorn is the only medium in which free speech may be recognized? Every media outlet is a corporation with employees and advertisers. That is to say, most every way we have to communicate publicly would satisfy the test you have presented. I suggest that "free" should not be confused with "lacking financial backing," or indeed invite any judgement about the motivation of the speech. I believe that Mr. Imus should enjoy exactly the same legal protection of the voicing of his personal opinions as does Mr. Sharpton, or members of college sports teams. Whether or not Mr. Imus was paid to speak his mind does not change his free speech protection.

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  2. Thanks for the thoughtful comments, Mike. I see the danger in mixing the concept of racial- or gender-demeaning content with that of free speech in the workplace, or in the school, or generally wherever someone else is in a position to exact punishment for subjectively unwelcome language. As you said, whether or not Mr. Imus was paid to speak his mind does not change his free speech protection; I think the real question is whether Mr. Imus' words qualify as protected speech in the first place. This would be quite aside from the venue in which they were spoken (i.e. sports event vs. walking the street) or whether the speaker was on someone else's clock at the time.

    I make the assumption that words of this sort don't qualify as protected speech under any circumstances, a logical leap that effectively removes the free-speech element from the equation. This allows me to arrive at the paid representative versus free agent question, a crucial difference in the context of who's really doing the talking, regardless of whose mouth might be doing the work at any given moment. I don't think it's possible to dismiss the employer-employee relationship, even when the employee's duties consist of nothing more than uttering words into a microphone. Newscasters, anchors, or anyone else paid to deliver a word-product simply isn't in a position to dictate content, and would certainly be relieved of his or her duties under the same circumstances. Free speech wouldn't enter the equation, because it isn't properly a free-speech issue.

    I'm not suggesting that walking the streets with a bullhorn is the only medium in which free speech may be recognized. I'm suggesting that Mr. Imus (or anyone for that matter) might learn that overt racist, sexist remarks don't qualify as protected speech these days.

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