More to censorship debate than the First Amendment

I waited a few days to weigh in on what may be the dopiest media storm since Miley Cyrus twerked her way into cultural infamy, but I decided that there are a set of issue in play here that need to be discussed.

Let’s set the context:

Phil Robertson, the patriarch of A&E’s Duck Dynasty, was interviewed by GQ and did what I think we all might have expected, given his public persona as a bizarre and extreme caricature of the ignorant redneck. I won’t repeat what he said, but let’s suffice to say that it was reprehensible and ignorant and Klan-ish. The comments elicited strong responses from the NAACP and the Human Rights Campaign and ultimate led to his suspension from the show.

Queue the right-wing outrage:

Todd Stearns of Fox News called the suspension an assault on the show’s Christian values.

A&E is apparently run by a bunch of anti-Christian, bigots. Duck Dynasty worships God. A&E worships GLAAD. If Phil had been twerking with a duck the network probably would’ve given him a contract extension. But because he espoused beliefs held by many Christians, he’s been silenced.

Others, such as Sarah Palin, Sean Hannity and Sen. Ted Cruz also have come to Robertson’s support.

Nothing unusual, so far. There have been intimations that right-wingers view this as a First Amendment issue, though I can find few actual conservative comments that reference it (aside from this statement from Louisiana Gov. Bobbie Jondal).

The response on the left was simple: The First Amendment covers government censorship, not the behavior of businesses. This, as far as it goes, is true. It also scares the hell out of me.

Companies do have the right to determine how best to protect their brand, and it is important that we understand the contractual relationship (the best way to protect the brand) between the Robertson family and A&E, whether there were clauses in the contract that cover the Robertsons’ public appearances — like the GQ story — and what not. This is no different than what happened with Paula Deen.

But the simplistic recoil to the First Amendment on both sides in this case is a rash simplification that dismisses legitimate concerns about who gets to determine what we say and when. The First Amendment covers government censorship, but censorship can occur outside the government arena.

Consider a nurse who works for a Catholic hospital. She is pro-choice and active with a local pro-choice group, writes letters, engages in clinic protection activities. Should the hospital be able to suspend or fire her for her political activities?

Consider the Walmart worker who advocates for unionization. She distributes, outside of work, fliers to her fellow workers. She pens letters to the editor of the local newspaper explaining why Walmart needs to be unionized. She gets fired for doing so. It is not a First Amendment case, but a case of censorship on the part of the company.

It also wasn’t a First Amendment issue when Walmart imposed its cultural mores on the music industry, requiring any CD that was to be sold at the retailer in the mid-’90s — when it was the largest retailer of music in the nation — to meet its very stringent requirements. Record companies responded by editing and dubbing songs, removing songs from CDs, altering artwork, etc.

And we should think back to the controversies surrounding films like The Last Temptation of Christ and TV shows like NYPD Blue. When Scorcese’s film was released, it met a boycott from conservative Christians and the Catholic church, who were seeking to influence the film’s distributor to pull it and theaters not to show it. The same kind of protests and boycotts — this time targeting advertisers — met NYPD Blue because the show crossed into gray area, showing partial nudity and using language then not normal for prime-television. In both cases, the boycott efforts targeted corporate parents in an effort to get them to pull support. Had the corporate masters acquiesced, they would have done so on economic grounds — which is not a lot different than what A&E has done with Robertson.

Are we really comfortable having corporate America police speech and political activism, and having them judge the art and entertainment that is appropriate for the rest of us? I’m not.

Here is what the cultural critic Jon Katz wrote in 1997, as the Walmart music controversy was still unfolding. Wal-Mart, by “acting as our moral guardian,” was “profoundly altering the way music is produced and marketed,” and that it was representative of a larger effort on the part of corporations 
to control the kinds of cultural products being made and released.

Few seem to understand that censorship isn’t limited to governmental entities; that large corporations are deeply and continuously engaged in censorship of movies, TV programs, and magazines, as well as music. That when retail outlets as large as Wal-Mart or Blockbuster Video refuse to sell certain kinds of CDs or movies, those CDs and movies are less likely to get made in the first place.

Few people realize how large corporations – using marketing, legal, and other constraints – work to limit our creative, informational, and cultural offerings by pursuing safe, noncontroversial content. One of their many side effects is that smaller retailers who will sell more diverse kinds of creative offerings are driven from business, making the things Wal-Mart and Blockbuster don’t like unavailable not only in their chain outlets, but everywhere.

Few Americans see the way large corporations from Disney to Westinghouse have ravaged mainstream media, posing a far greater menace to freedom on the Web than the goofy Communications Decency Act ever could. The Microsofting of the Internet is not some paranoid fantasy, but a multibillion-dollar project well underway.

Censorship, as he says, is more than just a First Amendment issue. But we seem unwilling to view corporate censorship in the same light as government interference. People, he said, “have a curious resistance to seeing censorship as having an economic dimension.”

The notion that only governments censor is a widespread belief on the Net and the Web. Censorship is the Communications Decency Act, something passed by Congress or mandated by the FCC. It involves heavyhanded federal agents, midnight raids, confiscated computers, jail terms

Anything else is just the free will of individuals and companies or the quixotic nature of the marketplace

That is, partly, the subtext of LZ Granderson’s otherwise useful column on the controversy. Your boss, Granderson implies, has a right to censor you if he doesn’t like what you say. You can say it, but you have to deal with the potential fallout, which can include being fired.

I have to wonder whether Granderson and others who are making this economic argument now are prepared to let it stand for the Walmart worker mentioned above. Or whether it would be OK for me to be fired for taking a public political stand with which my boss disagrees? If I write a blog post announcing to the world that I am a socialist and my boss gets angry, would it be acceptable for my boss to fire me? What if I had an Obama or Romney bumper sticker on my car? If so, under what circumstances (this is why it is important to know the contractual relationship between A&E and the Robertsons in this case)? This is the crux of the economic argument, as I understand it. It is just as chilling to our free-speech rights to have to wonder if what we say will anger the boss and get us fired as it is to wonder whether it will anger the government and get us sanctioned.

Here is Katz again:

I would challenge those of you who think that way to do some homework, and to rethink the very narrow definitions of censorship, to recognize the increasing censorship directly and indirectly practiced by the corporations that have taken over much of American media, with little challenge from either the press, Congress, national political figures, or federal regulatory agencies.

Again, I am not defending what Robertson said (it was reprehensible and disgusting and I am glad that it elicited a strong public response), nor am I saying that A&E reacted badly (again, we should turn to the contract). My concern is that we do our free-expression and political rights great damage if we ignore the potential dangers of corporate censorship.

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I thought I would add a note about boycotts, which essentially are the use of our buying power to effect change, either in behavior or belief. I have always been ambivalent about them. The use of economic pressure to change behavior can be effective (think Apartheid or efforts to end sweatshop labor), but they also can be a way to silence dissent (think of the boycotts of the Dixie Chicks after Natalie Maines’ comments about George W. Bush).

I am comfortable, for instance, with a boycott of Chick-Fil-A, because the boycott is designed to offset the money the company spends on passing anti-gay legislation — essentially, it is money meeting money. But I would be uncomfortable with the same boycott if it were in response only to something the company’s president said. (And, yes, these distinctions are pretty fine and may not be consistent, which is another reason I am ambivalent.)

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And, yes, my thinking has evolved some on this since the Paula Deen debacle a few months back, but no one attempted to turn that into a debate over censorship. Maybe this is a debate we should have had then.
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