In The Arena What Sarah Palin Doesn’t Get About Free Speech

A&E’s suspension of its Duck Dynasty star, Phil Robertson, is now dominating the holiday-season headlines and prompting much political commentary—perhaps most notably from Sarah Palin, who wrote on her Facebook page, “Free speech is an endangered species. Those ‘intolerants’ hatin’ and taking on the Duck Dynasty patriarch for voicing his personal opinion are taking on all of us.”

Robertson, in an interview with GQ that was published this week, called homosexuality sinful and compared it to bestiality, prompting A&E to distance itself from the star of the hit show. Conservatives have rallied to his side, including Louisiana Gov. Bobby Jindal, who chastised the “politically correct crowd” and said, “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.” The network’s decision is already being cast as another microcosm of the “culture wars,” but if anything, it reveals how quick we can be to hold ourselves to a double standard on speech when convenient.


Consider Palin’s own recent experience. When TV host Martin Bashir suggested last month that somebody should defecate in the mouth of the former Alaska governor after her bizarre comparison of the national debt to slavery, she publicly lobbied MSNBC to reprimand him. In fact, she cancelled an appearance with NBC’s Matt Lauer in protest. Shortly thereafter, Bashir tendered his resignation. Fast forward several weeks, and Palin has again entered the speech debate, this time taking a much different posture.

First, I should acknowledge that I have never watched Duck Dynasty—though millions of Americans do—so I must plead ignorance about what the buzz is all about. Thankfully, this is a story about many levels of ignorance, so I feel well qualified.

It should go without saying—although apparently it does not—that calling homosexuality sinful is dumb and offensive. Just as it was stupid and offensive several years ago for President Obama’s former chief of staff, Rahm Emanuel, to use a derogatory term about people born with mental issues—a comment that prompted Palin, ironically, to call for his firing as well. And from A&E’s perspective, it is certainly problematic letting your brand be associated with a comment that is sure to upset millions.

Each time a controversy like this occurs—and the list of them is long at this point—it is remarkable how quickly people shout “free speech” when they sympathize with the messenger. Personally, I agree with Jindal that our society can be far too politically correct—although Robertson’s comments do not appear to be made in jest or taken out of context. But A&E has to consider what kind of image it wants to project. It’s a business decision that will probably prove costly in either case, but it’s a decision that is theirs nonetheless. As long as it is the free marketplace—driven by that ultimate arbiter, money—that is regulating the degree of political correctness and not the state, or agents of the state, then that is free speech at work.

Several years ago, I represented a fire fighter who lost most of his friends on 9/11 and who sued to stop construction of 15-fifteen story mosque near Ground Zero. In response to the suit, many people cried “free speech, freedom of religion, First Amendment.” As I explained, part of free speech is the ability of others to respond and to express disapproval. Part of free speech is the consequence of bad decisions that are part of any free marketplace. And just as the expression of ideas that comes with building a mosque near the site of the 9/11 attacks had consequences, our filing of a lawsuit did as well. You live with those consequences, particularly when you stand by your words or actions, and move on.

As Sarah Palin ought to appreciate by now, that’s free speech at work. It doesn’t change when it’s your team that’s taking the heat.

Brett Joshpe is an attorney in New York City and principal of Joshpe Law Group LLP . He is also co-author of the book Why You’re Wrong About the Right with S.E. Cupp.