Why What Happened to Milo Yiannopoulos Wasn’t a Violation of the First Amendment

Milo Yiannopoulos got a controversial cushy book deal and promo tour from a major publisher, Simon and Schuster. Yiannopoulos lost the contract when he strayed a little too far off the beaten hater-Islamophobe-misogynist path and into the apparent deal-breaker of sounding like he was promoting pederasty. Some of his supporters are crying ‘suppression of free speech.’ Here’s why they’re off base.

The First Amendment to the Constitution of the United States:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This is a contract between the American people and the Federal government, in this case Congress, which makes the laws. It says Congress will not pass a law abridging the right of free speech. But Simon and Schuster is not Congress; it is a business that chooses which writers to give a book contract and promotional support to.

When Simon and Schuster gave Yiannopoulos a $250,000 book deal, many decided to boycott the choice. Booksellers would not carry it, reviewers wouldn’t review any of Simon and Schuster’s books, the writer Roxanne Gay canceled her own book contract with them and many vowed not to buy any books from the publisher. This is a boycott and it is also not a violation of the First Amendment. Consumers should decide carefully where to spend their money and should support businesses that share and advance their values, not businesses that go against and actively undermine what they believe in. Congress has nothing to do with any of this.

(For more on the First Amendment and what it protects, see the Ellen Alderman and Caroline Kennedy book In Our Defense: The Bill of Rights in Action.)

It’s similar to when Phil Robertson was suspended from Duck Dynasty for spewing hateful comments. Sarah Palin, among others, was up in arms. First amendment this, First Amendment that. It seems she still hadn’t done her homework by picking up and reading a copy of the Constitution. (Remember when she was running for Vice President but couldn’t answer a simple question about what the VP does?) It’s too bad she didn’t borrow one of her kids’ social studies books and brush up on what the Constitution actually says about this. Robertson was working for A&E, a business, and they worried their brand would suffer with some of their other consumers if Robertson’s hateful comments were allowed to pass unchallenged. But Robertson was reinstated after nine days and is still on the show. In that case, A&E decided the money he was making for them outweighed the money they would lose in a boycott and he continues to spew hateful invective against gays with impunity.

The First Amendment doesn’t guarantee you can say anything you want anywhere to anyone and not face any consequences. You can’t threaten to kill the president of the United States: that’s considered treason and it’s not constitutionally protected speech. You can direct hateful comments at a certain group of people by saying ‘all those Albanians are a threat to national security and they should be wiped off the face of the earth.’ This is constitutionally protected speech. But saying ‘Those Albanians who live at 255 Freedom Avenue will be home at six and they should be shot’ is not protected speech. It’s considered incitement to violence and criminal activity and you could be arrested for it.

(First Amendment scholar Rod Smolla talks more about this and other exceptions to protected speech in his book Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book.)

Milo’s freedom of expression hasn’t been curtailed; he can go on spewing his ugly spew for whatever audience he can find, unencumbered by any standards at all. While Simon and Schuster can certainly be questioned as to why they would suddenly draw the line where they did when many of Milo’s comments have been vicious and violent and offensive to many, they didn’t violate the First Amendment. They just aren’t giving a hater a major national platform and promotional support to go on saying horrible things about people. The only question here really is: what took them so long?

This entry was posted in Constitution, First Amendment rights, Freedom of Speech, hate speech, politics and tagged , , , , , , . Bookmark the permalink.

2 Responses to Why What Happened to Milo Yiannopoulos Wasn’t a Violation of the First Amendment

  1. Calling any objection to what another person says a violation of the 1st amendment happens on the left, too. Witness any number of blogs and commentators talking about how Trump is violating it by saying mean stuff about the media.


  2. chrisdevlin says:

    Hi, onereasonableperson, and thanks for your comment. I would say the big difference in your example is that Trump is in the government, he is not a private business, and when he speaks he speaks as the executive branch. The president takes an oath to protect and defend the Constitution of the United States against all enemies, foreign and domestic. Attacking the press, questioning its legitimacy and shutting out national press from briefings are examples of a government official threatening to abridge the freedom of the press. It’s not the same as a private business declining to give a private individual a platform for their speech. And many on the right, including members of the GOP in government, have condemned Trump’s attacks and reiterated that American government shouldn’t be about trying to suppress the free press.


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