Duck Fails — A&E, Duck Dynasty and the First Amendment

It’s been a while since we’ve had a pop culture fake First Amendment incident. More than two years have passed since ESPN dropped Hank Williams Jr. from the Monday Night Football opening after Hank got all rowdy and compared Pres. Obama to Hitler.

Why must you live out those songs that you wrote, Hank?

The latest celebrity to be booted off the air for saying something controversial off the air is Phil Robertson of A&E hit “Duck Dynasty,” which follows a family in Louisiana who makes duck calls. In an interview with GQ, Mr. Robertson, an avowed Bible-reading Christian, stated, among other things, that homosexuality is sinful and on par with bestiality and prostitution. A&E suspended Mr. Robertson. Then the First Amendment “defenders” came out.

Louisiana Governor Bobby Jindal issued this statement:

“Phil Robertson and his family are great citizens of the State of Louisiana. The politically correct crowd is tolerant of all viewpoints, except those they disagree with. I don’t agree with quite a bit of stuff I read in magazine interviews or see on TV. In fact, come to think of it, I find a good bit of it offensive. But I also acknowledge that this is a free country and everyone is entitled to express their views. In fact, I remember when TV networks believed in the First Amendment. It is a messed up situation when Miley Cyrus gets a laugh, and Phil Robertson gets suspended.”

Other characters have joined Gov. Jindal in his support of Mr. Robertson, including a half-term half-witted former politician who had her own reality shows and will not be linked on this blog. They suggest that because we have a First Amendment, that Mr. Robertson should be allowed on the air to say whatever he wants. I’m all in favor of First Amendment protections and free speech but I have to admit that there is no First Amendment issue here. The First Amendment prevents the government and government actors from restricting expression. In this situation, it isn’t the FCC or any government branch that is suspending Mr. Robertson, but his broadcaster, A&E, by itself. The First Amendment does not usually apply to private relationships such as the one between A&E and its TV personalities (and ESPN and Hank Williams Jr.). There’s probably even a provision in their contracts that allows such as suspension or cancellation. The First Amendment creates no right to be on TV. I’m not surprised that Gov. Jindal is mixed up over the First Amendment because he has had some struggles with it in the past.

Mr. Robertson’s views might upset people but are far from unique. A great many politicians and clergymen say similar things and are allowed on TV, especially on news and political shows. A&E could have let him stay on the air and even give him an entire show of him ranting on whatever he wants. But would advertisers, viewers and cable subscribers like that? That’s probably what motivated A&E.

I base my decisions on business.

While we’re on the First Amendment, it should be noted that it also grants a right of free association and its inverse of dissociation. A&E is free to not associate with Mr. Robertson or his co-stars provided it satisfies any legal obligations it might have.

Chris DeMatteo is an attorney and the sole member of DeMatteo Legal Solutions at 2911 Dixwell Ave., Ste. B10, Hamden, CT. Call (203) 691-6594 or visit the office website. Attorney DeMatteo represents clients in criminal, juvenile and civil matters in all of Connecticut's courts.

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