How to Compare the President to Hitler Without Violating the First Amendment

This is a guest post by attorney Dave Owens. Hank Williams Jr., First Amendment, Free speech, freedom of speech, constitution

For many, Hank Williams, Jr. is synonymous with Monday Night Football.

Even if you were not a fan of Williams or country music in general, you would recognize him from his “Are You Ready For Some Football” introduction that accompanied Monday Night Football every week.

On October 3rd, ESPN decided not to air the introduction after Williams made comments comparing President Obama to Adolph Hitler on Fox & Friends.

Soon afterwards ESPN and Williams officially parted ways. On Williams’ website he claimed that ESPN had “stepped on the toes of the First Amendment.”

While you may agree or disagree with ESPN’s actions, they did not infringe on Williams’ First Amendment rights.

Here’s why:

As Americans, the First Amendment is something that we treasure. It is the one part of the Constitution that almost any citizen has heard of. But, like Williams, many are unclear when the First Amendment applies.

We hear about the First Amendment a lot. It gets mentioned anytime a professional sports league fines one of its athletes for criticizing officials. Or anytime a media member is disciplined for making comments his or her company finds offensive.

What the media, high school government teachers, or anyone else who speaks about the virtues of the First Amendment should say is this:

With the exception of the 13th Amendment, the Constitution only applies to government conduct.

Therefore, if the government passed a law that prohibited Williams from criticizing the President, then it would be a violation of the First Amendment. But a private employer like ESPN is not bound by the Constitution.

A private employer is bound by state and federal laws, but as far as the Constitution is concerned, they are free to discipline an employee for his or her comments.

Now it may sound unfair to fire or discipline an employee for his or her comments (and it might be), but imagine if you owned a restaurant and one of your employees screamed obscenities at a customer.

If the First Amendment applied to private action, you would be forced to continue employing this individual.

You may disagree with ESPN. You may think that media entities shouldn’t fire individuals for expressing their viewpoints. If so, you can express your opinion to the network.

Or if you feel strongly enough, you can assert your power as a consumer and boycott/protest ESPN.

So, the next time you hear someone ranting and raving about how their First Amendment rights have been infringed, you should ask the question: did the government have anything to do with it?

Dave Owens can be reached at [email protected]


Photo credit: Flickr/Gongus