Strengthening Constitutional Self-Government

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Surprise: Moore Doesn’t Understand the First Amendment

In the tempest in a teapot that is the Aladdin Casino President Bill Timmin’s decision to boot Linda Ronstadt after her tribute to Michael Moore, I have been waiting for someone to make an argument based on the First Amendment. Sure enough, Moore made the argument himself:

Moore wrote a letter to Timmins on Monday saying he thinks the casino president owes Ronstadt an apology.

"What country do you live in?" Moore asked. "Last time I checked, Las Vegas is still in the United States. And in the United States, we have something called, ’The First Amendment.’...For you to throw Linda Ronstadt off the premises because she dared to say a few words in support of me and my film, is simply stupid and Un-American."

For Mr. Moore, here is a little lesson in Con Law 101. The First Amendment states in relevant part that "Congress shall make no law . . . abridging the freedom of speech . . . ." Through the Due Process Clause of the 14th Amendment, "Congress" is now interpreted to include state governments. So unless he is arguing that the casino is the federal or state government, Moore has shown his vast ignorance once again. And no, the ethereal spirit of the First Amendment does not really mean that private parties are forced to subsidize speech with which they do not agree (keep in mind that Ms. Ronstadt was a paid performer). Quite to the contrary, implicit in the First Amendment is the freedom of association--which includes the right (with certain limitations) to exclude those with whom you disagree. Accordingly, the Democratic National Convention does not have to feature Ann Coulter, and the Republican Convention does not have to feature a duet by Linda Ronstadt and Michael Moore. Moreover, I don’t have to invite Michael Moore to join me for a welcome back from Iraq party, and he doesn’t need to invite me to his movie’s after-party--and we can expressly not invite each other strictly because we disagree with the other’s speech. We can even kick each other out of the respective parties if we find the other’s views unacceptable. And, to the case at issue, a casino does not need to tolerate a paid performer using their stage to promote a commercial movie unrelated to her performance or political views which are unpopular to the casino’s clients. It is astounding to me how many people make the remarkably dumb argument that the First Amendment is intended to regulate private entities or persons. It is not, and if you think about it for more than a couple of seconds, that is a good thing. While there is merit in the interaction of ideas, not every stage is a street corner, and it is well within the rights of the owner to prohibit speech with which he disagrees for reasons of principle or profit.

Discussions - 3 Comments

Excellent points, Mr. Alt. If you don’t mind some further commentary adding a bit to what you said. As you pointed out, the wording of the First Amendment is very clear. The Bill of Rights was aimed at the federal government and would not have passed through the First Congress had it been intended for the states. The states generally had their own bills of rights and were not limited by the Bill of Rights. In other words, they could limit free speech or maintain established churches within their borders free of lawsuits. In 1833, our great jurist, John Marshall, endorsed this view of the Bill of Rights in Barron v. Baltimore. As Mr. Alt pointed out, it was only with the "incorporation" of the privileges and immunities clause of the Fourteenth Amendment that the Court starting applying the Bill of Rights to the states. Now, it did not do so immediately. In the Slaughterhouse cases (1873) and I believe again in the Civil Rights cases (1886), the Court refused to apply the Bill of Rights to the states, even for African-Americans in the latter case though the Amendment was primarily aimed at protecting their rights in the wake of the Civil War. It was with the Lochner v. NY case that the (conservative) Court began to make up rights (freedom of contract) that were not in the Constitution and "Lochnerize" the Fourteenth Amendment to the states in order to protect property rights and corporations. With the arrival of the activist Warren Court, a liberal court similarly incorporated the Bill of Rights, though it did not do so with a clear conscience. In Brown v. Board (1954), it admitted that the original intent of the Fourteenth Amendment was shrouded and unclear, though it applied the Fourteenth Amendment to the states anyway in a ribald use of power. Other than that, it has been pretty much open season on applying the Bill of Rights to the states with our citizenry basically acceding to it without almost any thought or comment. Indeed, Michael Moore, and many others - famous and ordinary citizens - are now in the business of thinking that the Bill of Rights can be applied to almost any situation whatsoever. This argument bears an outrageous contradiction of America’s Founding principles and any obvious reading of our Constitution and understanding of our government. This incident alone should teach us that Michael Moore should not influence anyone’s vote as he doesn’t know the first thing about our political system. He can learn a thing or two from my 14-year old students.

Thank you. But you should call it Con Law for Dummies and it should be a prerequisite before anyone takes seriously a freedom of speech whine.

There’s some way in which Janet Jackson and Justin Timberlake violated a decorum where the TV audience, the audience for that game should have had freedom from the Tart’s speech. Freedom from the speech of (certain) others in certain settings is concommitant to freedom of speech. The forces that got us our Bill of Rights did not have the wit or the philosophy to spell out a jurisprudential theory of sphere sovereignty, but the violation remains as brutal to many in that audience, whereas those who took it all in really don’t count in this matter. They can go to all sorts of movies, TV shows, personal phone services, whore houses, web cameras etc to get what they think they need. They can not be allowed to flood every venue with their values.

The corporate parties to this gross violation and the two principals should have been fined blind.

- Owlbird, no puritan

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