Why Firing Phil Robertson Is Not a Censorship or First Amendment Issue

There’s a great deal of misinformation going around concerning A&E’s reaction to Phil Robertson’s comments about same-sex sex. Even Sarah Palin (“Free speech is an endangered species”) and Gov. Bobby Jindal (“I remember when TV networks believed in the First Amendment”) have gotten it wrong.

Even Mark Levin is wrong to bring the First Amendment into the discussion.

A&E is not the government. The network is a private business. It had a business relationship with the Robertson family. If A&E wants to sever that relationship according to contractual specifics, then it can do so.

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The First Amendment applies to what Congress can and cannot do. It is very clear on what agency is involved, and it’s not private businesses like A&E:

“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.”

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A&E made a marketplace, business decision, for good or bad. Time will tell.

No one is prohibiting Phil Robertson from saying anything about what he believes. He is not being censored. He can speak to anybody he wants to about this or any subject. He can take a full-page ad out in a newspaper, and the paper can take his money and print the ad. Or it can decide not to print it for whatever reason. The First Amendment does not apply.

Even TIME magazine gets it right. James Poniewozik comments:

“Losing your job for saying something that embarrasses your private employer–even if that is a media outlet–is not a free speech issue. It is not a First Amendment issue. It may be dumb, it may be justified, but it is not a constitutional violation. It is not for Phil Robertson, Alec Baldwin, Martin Bashir, Don Imus, The Dixie Chicks, Rush Limbaugh, or anyone else. People changing the channel or not buying your products because of what you said is not ‘censorship’; nor is losing a business deal for same.”


The Robertsons could set up a web site, rent email lists, send fliers through the mail, write and publish a book, produce their own show, or find another network. I heard Glenn Beck is interested.

The Robertson firing is interesting in that it shows what people who own businesses are permitted to do.

Let me tell you where First Amendment rights are being infringed. Several courts have rule against people who refuse to offer services to same-sex couples who want to marry. It’s happened to bakeries and photographers.

If A&E is within its rights to fire someone for what he says about homosexual behavior, then why is it wrong for a business owner to refuse service to someone who holds contrary beliefs about homosexuality?

A&E shouldn’t be forced by the government to rehire Phil Robertson, and the government should not force a bakery to bake a cake for a couple that admits to engaging in same-sex sex. They’re both businesses, and the government has no business getting involved in their businesses unless a business crime like fraud or breach of contract has taken place.

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