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Mississippi Lawyer Blog

Duck Dynasty fans ask: "What Happened To the 1st Amendment Jack?"

duck-dynastys-phil-robertson-copy.jpgBy now I'm sure you've heard about the anti-gay comments made by Duck Dynasty start Phil Robertson. The popular A&E series follows the every day life of the Robertson clan and has drawn a huge nationwide following, none bigger than in huntin' happy Mississippi.

By all accounts, the Robertsons appear to be good people. They are funny, fiercely patriotic and above all else they do not hide behind the fact that they are Christians. It's easy to see why many in the South are drawn to this family.

However, Phil's comments in the GQ magazine interview are not sitting well with some. Here's what Phil was quoted as saying:

"It seems like, to me, a vagina -- as a man -- would be more desirable than a man's anus. That's just me. I'm just thinking: There's more there! She's got more to offer. I mean, come on, dudes! You know what I'm saying? But hey, sin: It's not logical, my man. It's just not logical." Later, when asked what is sinful, he replied: "Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men."

As a result of these comments, A&E decided to suspend Phil from the show indefinitely. Now his followers are in an uproar. I've seen many on social media claim that this is a violation of the First Amendment. "This is America, you ought to be able to say what you want" is the general comment.

Mr. Robertson, just like any other American, is protected by the First Amendment. However, the First Amendment only protects our freedom of speech from Government intrusion: "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." (The First Amendment applies to States as well although all states have similar provisions in their constitutions.)
Although it's a little out of the topic of this blog, not all speech enjoys first amendment protection. Governments can pass laws which punish speech which is "lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-572 (U.S. 1942). The ironic part of all of this is if Phil Robertson made these same comments 50 years ago his comments may have been construed as being "lewd and obscene" and subjected him to being arrested. Thank your local ACLU for expounding our rights to say "vagina" and "anus" without fear of reprisal. But that's a blog for another day.

A&E is not the Government and they don't have to abide by the First Amendment. They are Mr. Robertson's employer. Mr. Robertson's "rights" with A&E are governed by whatever contract he has with them. It's no different that the relationship that anyone of us has with our employers. The Government may not be able to restrict your First Amendment rights but your boss sure can.

I understand Duck Dynasty fans are upset but this isn't a First Amendment issue. Boycott A&E. Boycott GLEE.But please stop with the "this country is going to heck in a hand basket" drivel. When you work in the entertainment business like the Robertsons do, you should be a little more diplomatic in your comments on controversial subjects. Ask Mel Gibson about that.

Now if Phil Robertson, or anyone else for that matter, is arrested for espousing his First Amendment views then he needs to call Coxwell & Associates. As Uncle Si might say "we got your back, Jack!"

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