Somehow, a U.S. senator with a law degree thinks that the First Amendment means a private speaker does not have the right to make an ethics choice.
The background: U.S. Sen. Josh Hawley, R-Mo., had a contract with Simon & Schuster to publish The Tyranny of Big Tech. That was before Wednesday, Jan. 6, when Hawley favorably gestured with a thumbs up, a fist pump and waves toward the crowd that a short while later charged the Capitol building. At least five died, including a Capitol Police officer.
The blowback against Hawley came quickly. It included his mentor, former Sen. John Danforth, who said that recruiting Hawley to take his place was “the biggest mistake I’ve ever made in my life.”
The blowback also included Simon & Schuster’s decision to cancel his contract. The company’s statement said: “As publisher, it will always be our mission to amplify a variety of voices and viewpoints: at the same time we take seriously our larger public responsibility as citizens, and cannot support Senator Hawley after his role in what became a dangerous threat to our democracy and freedom.”
Hawley’s response was to call the decision “Orwellian” and threaten to sue. He wrote: “Let me be clear, this is not just a contract dispute. It’s a direct assault on the First Amendment. Only approved speech can now be published. This is the Left looking to cancel everyone they don’t approve of.” His statement ends: “We’ll see you in court.”
Unless there is some contractual issue in which the publisher unilaterally agreed to release the book, expect that Hawley will not win on First Amendment grounds.
He is a graduate of Yale Law School, so he knows that the First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press… .” The company’s decision is the First Amendment at work, inasmuch as it gives non-governmental entities the right to make their own decisions about speech content.
It’s also true about ideas as it is about barbecue sauce, as barbecue magnate Maurice Bessinger found out in a South Carolina lawsuit. Courts quickly dismissed his $50 million lawsuit against stores that stopped selling his sauce after he raised the Confederate flag at his stores in response to the state removing the rebel flag from atop the Statehouse.
Next, notice the passive voice in Hawley’s statement that only “approved speech can now be published.” It matters legally and ethically that the real subject of the sentence is missing, as it does not say who must do the approving. (Passive voice can be Orwellian in the sense of “Big Brother” in 1984, even as George Orwell said passive voice is usually bad writing.)
Unless it’s a government doing the approving and disapproving, then it’s not a First Amendment issue unless the speech violates libel, obscenity, copyright, or another law.
Simon & Schuster has the economic and ethical right to choose with whom it will affiliate. Proof is that company’s authors include President Donald Trump, former presidents Ronald Reagan and George H.W. Bush, and Rush Limbaugh.
The First Amendment has much to do with ethics, as it gives us the right to make our own choices about religion, speech and assembly.
Essentially, Hawley is arguing that private citizens have no ethical right to choose what speech to endorse or not endorse. That’s what is actually Orwellian. He’s arguing, like Big Brother, that ignorance is strength.
The First Amendment empowers us to make our own choices. Those choices may be ethically right or wrong, but the freedom to choose is a requirement to being ethical. His notion that the government can take away the First Amendment rights is to argue that the government can take away our ability to make ethics-focused choices.
His argument is as legally wrong as it is immoral.
And, of course, that First Amendment gives Hawley the choice to sell the book to another publisher — or publish it himself.