Benjamin Studebaker

American cable station A&E has put Phil Robertson, star of its hit reality series Duck Dynasty, on an indefinite hiatus for making comments in the January issue of GQ magazine in which he disparaged gay people. There have been two broad categories of reaction to this. LGBT rights supporters are happy, believing that A&E’s move sends a message that criticizing homosexuality is no longer okay. Conservative Christians, on the other hand, are upset–they believe that A&E has stifled Robertson’s free speech rights. Who’s right?

First, let’s get the quotes out of the way. GQ asked Robertson what his definition of sinful behavior is. Here’s what Robertson said:

Start with homosexual behavior and just morph out from there…

Don’t be deceived. Neither the adulterers, the idolaters, the male prostitutes, the homosexual offenders, the greedy, the drunkards, the slanderers, the swindlers — they won’t inherit the kingdom of God. Don’t deceive yourself. It’s not right.

Of interest are the sins that Robertson compares to homosexuality–adultery, the worship of idols, greed, drunkenness, and harmful lying (slandering and swindling). It should be noted that there is some distinction among these that Robertson ignores. Consensual homosexuality, if it is sinful, can only harm the sinner. Harmful lying negatively effects others, as can alcoholism, adultery, and greed in some contexts. Idol worship is a nearer parallel, because, like consensual homosexuality, idol worship does not in and of itself cause harm to any other person. If it is an offence, it could be to god only, and to others only on god’s behalf.

Is A&E wrongfully silencing an alternative view by suspending Robertson? To answer this question, we need to understand the kind of entity A&E is. Critically, A&E is not the state–it is a corporate entity. The relationship of corporations to free speech is a contested one. There was the relatively well-known Citizens United supreme court decision, in which it was 5-4 that corporations are voluntary associations of individuals and consequently have the same free speech rights that other associations and organizations have. In the context of Citizens United, that meant that corporations could spend their money on political activities. However, it also means that corporations are responsible for what they say. When A&E’s employees engage in political speech and that speech is picked up by the wider media, that speech reflects, for good or for ill, on A&E. If A&E does nothing, LGBT activists would see that as tacit endorsement by the larger corporate entity of Robertson’s speech. However, by suspending Robertson, A&E actively denies him endorsement. Importantly, Citizens United has left A&E with no middle option. Because A&E is allowed to engage in collective speech, it is also responsible for what it says or doesn’t say.

It must be understood that to some degree, corporations must necessarily be seen as collective associations that participate in speech. TV networks have to make decisions about what programs they would like to air and what programs they would not like to air, and these decisions must involve image-crafting. TV networks want shows that will be attractive to viewers and advertisers, that will portray the network in a positive light. A&E clearly decided that at this point, being perceived as anti-gay is worse for their image among their target viewership than being perceived as pro-gay. Interestingly, this is despite the fact that Duck Dynasty is full of Christian undertones–the family it depicts regularly says prayers on the air. Perhaps A&E believes that even most Christians are not, at this point, anti-gay, or perhaps it believes that the viewership for Dynasty is not predominately Christian despite the show’s content. In either case, A&E is making a decision about what it wants viewers and advertisers to perceive it to be saying, a decision that it could not avoid making. In order for TV networks to be completely impartial to speech, they would have to ignore entirely the speech content of the shows they put on the air. Doing this is impossible. This applies to many other kinds of corporations, particularly when they advertise. Like the content of TV shows, the content of advertisements has to be selected by the corporate entity and consequently reflects positively or negatively upon that entity. For this reason, corporations use discretion when deciding how to represent their brands to consumers.

But if the left is arguing that A&E is entitled to suspend Robertson on corporate speech grounds, how can it simultaneously deny that corporations should be permitted to use their money for political purposes or otherwise engage in actions that materially effect politics? The upcoming Hobby Lobby case is of interest here. Hobby Lobby wants the court to declare a part of Obama’s new healthcare law unconstitutional–namely, the requirement that employer health insurance packages cover certain kinds of contraceptive–on the grounds that Hobby Lobby is a Christian corporation and has a free speech and free religion right to act in accordance with its beliefs. If corporations are associations of people with free speech rights–and it is very hard to deny this, at least in the case of TV networks and corporate advertising–then what is to stop a corporation from using its wealth to influence politics or its employing power to deny its workers access to goods the law has mandated they are entitled to? The negative implications are quite serious. We can imagine a company or group of companies using their money to tip elections in the favor of one party or another on the informal expectation that they would be rewarded with tax breaks or deregulation by that party once in office. Indeed, it is widely believed, and not without cause, that this is pretty much what is already happening in this country. The Hobby Lobby case has the potential to broaden further still the negative externalities of acknowledging that corporations have some people-like qualities.

We might argue that when corporations engage in political activity, they are taking action on behalf of their entire membership when portions of that membership may not agree with that action or may not see themselves as advantaged by that activity. If say, Walmart donates money to the Republican Party but many Walmart workers or shareholders see themselves as democrats, those workers and shareholders are having their money or money they have generated used for political purposes that they do not consent to. But this happens in all kinds of political organizations all the time. the AARP or a teachers’ union may endorse one candidate or another, but it is never the case that every AARP member or union member agrees with the collective organization’s endorsement. Typically we argue that if  a citizen really objects to the behavior of an organization of which he is a member, he should leave that organization or otherwise cease contributing to it. If you don’t like what the AARP does, don’t give it your money. However, we could argue that membership of corporate entities, at least for some workers, is less obviously voluntary. If jobs are scarce in your town and all the available jobs are for corporations that are collectively hostile to your political or religious beliefs, you are left with the choice either of contributing to an organization with which you do not agree or going homeless, under current welfare rules that require recipients to seek employment. Yet union membership often works in this way–it is hard to get access to a variety of jobs without joining and contributing to the unions for those jobs. Ultimately, we are all to some degree forced to contribute to a system with which we might not agree. Anarchists still have to pay taxes and communists still need to make a living. We often tell such people that if they disagree so strongly with our system, they should emigrate (America: love it or leave it), but emigration is not a realistic option for poor people and/or those with limited language skills. If you speak exclusively English, there is no country in the world you can go to that is anarchist or communist in which you can be understood by most people. At the end of the day, sometimes we have to participate in things we don’t like. The mere fact that some contributors to corporate associations may not like their collective political activity is not in and of itself sufficient reason to deny corporations the right to do that.

That said, we can object to the corporate power structure and the way that power structure influences the kind of speech that corporate associations engage in. Corporations are run by small oligarchies, and we may believe that these oligarchies use corporate speech to benefit themselves rather than the members of the corporation as a whole such that giving them political speech powers enables them to open up a speech inequality between the people who run corporations and the people who work for them. If a company uses corporate speech to benefit only its owners and not its workers, corporate speech uses resources produced by workers to systematically decrease worker influence in the polity. This contrasts strongly with unions and other political organizations, which exist to achieve goals that members share. Even if I disagree with the strategy being pursued by my union, I acknowledge that the union’s goal is to better my living standard. By contrast, corporate speech often seems indifferent to the interests of employees. If this argument is right, corporate speech does not decrease my speech power in absolute terms as an individual citizen, but it decreases it in relative terms by dwarfing it in size. This difference in size in and of itself would not be important if corporate speakers shared my interests, but if they do not, by their speech not only dwarfs mine, but their speech actively works to undermine me. Speakers regularly disagree with each other and undermine one another, but they typically do this from positions that are at least to some degree equal. If I criticize Bob and Bob defends himself, assuming neither of us has a tremendous media platform, the state is influenced by whichever one of is more persuasive. But if I criticize a corporate entity and that corporate entity defends itself, the amount of speech the corporate entity can purchase drowns me out. If there is a problem with corporate speech, it is that when applied to politics it opens up large unacknowledged inequalities in the influence of speakers that is wholly independent of the goodness or badness of the arguments given. Money trumps reason.

But while this argument may have something to say about Hobby Lobby and Citizens United, it ultimately doesn’t make A&E’s suspension of Phil Robertson wrong, because when push comes to shove, companies cannot avoid making decisions about what TV shows and advertisements to air. With no option available that is neither endorsement nor repudiation, the company has to choose, and viewers and advertisers are free to decide whether or not they approve of that choice. A&E is entitled to suspend Robertson, but if you’re a conservative Christian, you’re entitled to stop buying ads on A&E or to quit watching the channel. By contrast, corporations could spend money on no political causes of any kind and could be required to agnostically follow the law, if we so chose to, based on the harmful speech inequities that doing otherwise generates.

UPDATE:

As of December 27th, A&E has decided to reinstate Phil Robertson. A&E has determined that they are more likely to retain viewers by keeping Robertson than by dumping him–they are well within their rights to do so. Opponents of Robertson are entitled to stop watch the show and/or A&E altogether, if they so choose.