Don Imus, Snoop Dogg and the 1st Amendment: Suppose the “marketplace of ideas” stops buying “bitches,” “hos” and the N-word?
By Peter Scheer
Don Imus may be gone, guilty of one too many assaults on his audience’s sensitivities and sensibilities, but outrage over racist shock-talk in the mass media continues to build, with hip-hop lyrics the most likely, and most deserving, next target. If “bitches,” “hos” and the N-word were to disappear from our public vocabulary, would freedom of speech be the ultimate casualty?
No, not as long as this change is not forced upon us by an overreaching government. When voices are silenced by the Federal Communications Commission, a Congressional committee, or some other arm of government, the result is censorship–no matter how offensive the speaker. But when a voice goes silent because hardly anyone cares to listen any more to what the speaker has to say, that is the opposite of censorship. That is an example of free speech.
Imus’ racist riffs, like Snoop Dogg’s misogynistic rhetoric, enjoy protection under the First Amendment’s guarantee of free speech. With exceptions that are few and extreme, virtually all expression is protected. But the First Amendment does not assure that a speaker will have, or be able to keep, an audience. On the contrary, principles of free speech protect the right of audience members to choose a different voice, or to stop listening altogether.
Imus has lost his prized positions on CBS (radio) and MSNBC (cable), but his right to speak has not been taken away. He could re-launch his talk show tomorrow on the Internet, and likely would command a substantial online audience right away. What he has lost is the willingness of his sponsors to continue to subsidize his unconstrained impulse to offend their customers. Abandoned by the sponsors, Imus had no leverage with the bosses at CBS and MSNBC who, in the end, and after much equivocation, dumped him for financial reasons–despite their improbable claims to have acted on principle. (“Shocked! Shocked to hear bad language on Imus’ program!”)
Imus learned the truth in the truism that free speech isn’t free.
It is a lesson that bears relearning. The Dixie Chicks, following their well-publicized criticism of George Bush, experienced a fall-off in record sales and concert bookings (at least initially, when their antiwar views were still unpopular with their fans). If they thought their attack on the President, in the heart of Bush Country, would have no cost to them, they obviously miscalculated.
The First Amendment as a “marketplace of ideas” is an apt metaphor for the risks of being controversial. The constitutional safeguard protects a speaker’s opportunity to seek an audience–of true believers, supporters, or people who are just interested. It is a right to compete, but not a right to succeed. Rejection in the marketplace, as in Imus’ case, is not a denial of free speech, but, rather, a manifestation of it.
The marketplace metaphor also explains why government action to suppress speech violates the First Amendment: It displaces the market of ideas, imposing an outcome that is not necessarily the market’s choice. The Dixie Chicks would have grounds to complain if, for example, radio stations’ refusal to play their songs was the result of pressure by the Bush administration.
Boycotts are equally suspect, and for the same reason. Suppose radio stations around the country got together and conspired to blacklist the Dixie Chicks’ songs. Or suppose that Imus’ sponsors, rather than deciding independently to pull the plug on their advertising for his show, conspired to do so. In both cases the boycott would have overridden the competitive choice of the market of ideas. Although the offense would be termed an “antitrust violation” rather than a First Amendment violation (since the coercion is not caused by government), it amounts to the same thing.
Finally, self-censorship by the media short-circuits the market of ideas no less than government censorship. Consider, for example, the media’s reporting on a Danish newspaper’s 2005 publication of cartoons mocking Islam and depicting the prophet Mohammed–images that set off rioting in many countries with large Muslim populations. Not wanting to give offense, U.S. news organizations, virtually without exception, chose not to show their readers (or viewers) what the fuss was all about.
This was hardly journalism’s finest hour. But we’ve made progress since then. At least the press, in reporting on Imus’ firing, did not refrain from telling us what Imus said.
Peter Scheer, a lawyer and journalist, is executive director of CFAC. ps@cfac.org