Have you heard about the fracas surrounding Rodner Figueroa and Michelle Obama? Liberals don’t know what to do, support the Latino or the African-American woman. The bottom line of their conundrum, besides the knee jerk “don’t mess with the Obamas” reaction is who to call a racist! Oh, then there’s the “but the First Amendment!” outcry too. That’s what I want to clear up for everyone today. Figueroa’s firing wasn’t an infringement of his First Amendment rights.
So here’s the situation: Univision television, a Spanish language station, had a reporter, Rodner Figueroa, who often reported (quite snarkily) on fashion. During a live segment on “El Gordo y la Flaca” Figueroa commented on Michelle Obama’s looks, saying “Watch out, you know that Michelle Obama looks like she’s from the cast of Planet of the Apes, the movie.” Uh oh… The other hosts tried to help him backpedal, but Figueroa wouldn’t back down. Univision went into immediate defense mode and released a statement that called Figueroa’s remarks as “completely reprehensible” and not reflective of the values or opinions of Univision…blah, blah, blah… and summarily fired Figueroa.
That’s where the conundrum comes in for liberals, and actually for some conservatives who took issue with his firing. For liberals it was whom to call a racist. For other liberals and a number of conservatives, the outcry was “But the First Amendment!” Oh, people, people, people….really??
Let me say this, even my 16 year old knows that words have consequences and knows that you may have the right to say something, but it won’t necessarily protect you from the consequences of doing so. And this is exactly the reason why Figeuroa’s firing was legal and constitutional.
So let’s review. The First Amendment, where it applies to free speech and free press, states: “Congress shall make no law…abridging the freedom of speech or of the press…” Notice it says “Congress shall make no law”; not your boss. Congress can’t pass a law that says “if you make a statement about the First Lady that makes her look bad, you will be fired from your job, especially if you are in the press.” That would be unconstitutional.
Univision, however, can use its best judgment and see that a comment made by a reporter may reflect badly upon them and, if contractually able, fire that reporter or other employee. Figueroa’s statement, on its face, is in bad taste. Historically, African-Americans have been compared to monkeys and apes, and it is considered a racist thing to do so now. Figueroa did that, on live TV. Therefore, whether he is a minority or not there are consequences for making that faux pas.
Many people are confused about what free speech entails. Yes, we have the right to speak freely in our country, and, by and large, the government can’t put limits on that speech. Notice again I said the government. The federal Constitution, and any state constitutions, restrict the actions of government, and protect the rights of individuals from said government(s). Businesses, whether sole proprietorships, LLC’s, partnerships or corporations, are not government. This is why businesses can put up signs that say “no guns allowed” and not violate the Second Amendment. It’s why businesses can kick people out for saying certain things. Try going in a theater or other business and shout “FIRE” when there isn’t one and find out how quickly your “right” to say it has a really bad consequence for doing so.
Your right to speak is unilateral. You can open your mouth and let anything pop out, but there are limits to what you can say without consequence. If you do things like say something that incites actions that would harm another person (like a threat), that’s obscene, or advocates illegal activities, you will be prosecuted. Here is a list of ways that the Supreme Court has ruled that our speech can be limited by government (i.e. they can pass laws about it and you can be prosecuted for violating them):
Speech that incites actions that would harm others (such as shouting “FIRE” in a crowded theater, the most famous example) – citing case: Schenck v. United States, 249 U.S. 47 (1919)
Speech (verbal or written) that distributes obscene materials – citing case: Roth v. United States, 354 U.S. 476 (1957)
Burning draft cards as an anti-war protest – citing case: United States v. O’Brien, 391 U.S. 367 (1968)
Students’ printing or permitting students to print articles in a school newspaper over the objections of the school administration – citing case: Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
Students making an obscene speech at a school-sponsored event – citing case: Bethel School District #43 v. Fraser, 478 U.S. 675 (1986)
Students advocating illegal drug use at a school-sponsored event – citing case: Morse v. Frederick, 551 U.S. 393 (2007)
Now, saying that a business can’t fire someone for making a really stupid statement, like Figueroa did? Well, not so much. Unless you have a contract with your employer, they can fire you for anything or nothing. It’s called at-will employment.
If I went to work wearing a t-shirt that said “My boss sucks” I will be sent home, told to change and, more likely than not, fired. Do I have a First Amendment right to wear it? Absolutely. Does my employer have the right to fire me? Absolutely. Remember that story of the girl on Twitter who tweeted about starting a “f*^&ing” job the next day and got fired before she started because her new employer saw it on Twitter? Yep, totally legal and constitutional, the consequences of stupidity.
If you have a contract for employment, which I suspect strongly that Figueroa did, there is probably a clause in it that covers speech like his, and allowed his firing. If not, then he has a cause of action against Univision for breach of contract, but not for infringing on his First Amendment rights. Univision can’t infringe on his rights, they aren’t government.
And that’s simply what it comes down to: only Government can infringe upon our Constitutional rights.