Let us begin with a Sacred Text: The First Amendment to the Constitution of the United States:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Its charge is clear and absolute: Congress shall make no law…abridging freedom of speech or of the press.
But does the Constitutional rule apply not just to Congress, but to, say, a retailer like Wal-Mart? Does it have a right to abridge “offensive material” from its website? And what about the website Zazzle, which identified a tee-shirt emblazoned: “Rope. Tree. Journalist. SOME ASSEMBLY REQUIRED,” as an offensive item, and took it down from sale?” And what about Teespring, the shirt’s online distributor, which also pulled the shirt because it violated their “acceptable use policy, [which] bars racist and other offensive content as well as content that promotes or glorifies harm or violence to individuals.”
As a journalist, I have to say I’m offended by the idea of taking a rope and a tree and lynching me. But, hey, as the op-ed columnist Cheryl Chumley wrote in the Washington Times, “Well, that’s the First Amendment for ya. It’s meant to protect offensive speech — there’s no need to protect tame, unoffensive speech. And despicable as the message of that T-shirt might be, fact is, journalists ought to be on the side of supporting the rights of those who would sell it.”
What a world we’ve got here, where the Washington Times, among the most politically conservative newspapers in America propounds an argument usually made by the ultra-liberal American Civil Liberties Union.
It all goes to show ya, context matters. For example, the US Supreme Court has put forward two exceptions to the absolute protection of freedom of speech…Justice Oliver Wendell Holmes’ famous 1917 decision that the First Amendment “would not protect a man falsely shouting fire in a theater and causing a panic”…[and] would not license language that would “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” In 1969, the Court narrowed Justice Holmes’ exception to prohibit only speech “likely to incite imminent lawless action.”
The far-right blogger who calls himself The Emperor Misha claims authorship of the t-shirt copy, which he dismisses as a joke, or “mere hyperbole.” A decade ago, Misha expanded his meme from journalists to a majority of the Supreme Court. ““Five ropes, five robes, five trees. Some assembly required.”
Today he says, “It’s nice to see that our words still resonate loudly out there.” And then makes his own argument that a journalist’s First Amendment right, “is the same right that everybody else has, including those poor benighted peasant citizens that you so disdain (and fear when they print T-shirts you don’t like, exercising their rights).
Dan Shelley is the Executive Director of the Radio Television Digital News Association and Foundation. Shelley is a veteran Edward. R. Murrow Award-winning radio, television and digital media executive, serving in key news leadership positions with iHeartMedia, Radio One, CBS Television Stations and Journal Broadcast Group. He began his career at KTTS-AM/FM in Springfield, Missouri. He has been a member of the RTDNA/F board of directors for nearly two decades, serving terms as the Association’s chairman in 2005-2006 and Foundation chairman the following year, as well as chairing the programs, awards and convention planning committees.