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Toledo Legal News - Editorial List Table


Funny or not, speech is still free


Did you hear the one about the comedian who got fired from Saturday Night Live for making offensive comments before he ever set foot on the show? It’s no joke.

Early last month, comedian Shane Gillis was hired and then promptly fired by the long-running sketch comedy show after his racist and homophobic comments from a year-old podcast came to light. Several comedians came to his defense, claiming that Gillis was a victim and that his firing exemplified an erosion of free speech in the United States of America. But does it?

This latest comedy controversy highlights the tricky intersection between our fundamental freedoms and cultural trends; it also reveals the messy collisions that can take place between opposing viewpoints. And it illustrates commonly held misunderstandings about what is and is not considered protected speech under the First Amendment.

For the record, being fired from Saturday Night Live — or any TV show for that matter — is not a First Amendment issue. The First Amendment only protects people in the United States from government censorship. Private companies are not bound by its restrictions. NBC was well within its rights to terminate Gillis’s employment.

More importantly, the First Amendment does not protect individuals from facing social repercussions for their offensive speech. If Gillis’s podcasts never saw the light of day, odds are that NBC wouldn’t have been in a position to fire him. Nonetheless, his comments were publicized and the sizable public outcry that followed — also protected by the First Amendment — undoubtedly influenced the network’s decision.

From our viewpoint, Gillis’s firing and the clashing opinions surrounding it does not mean that our right to free speech is in jeopardy. It’s quite the opposite, actually.

Our founders included the First Amendment in our Constitution because they recognized the importance of a free flow of ideas and information to democratic government and of protecting the rights of people whose views might be unpopular. If the government were to determine which speech is too offensive to be allowed, that could put them on a slippery slope. Bans on offensive speech might morph into bans on any speech that makes government leaders look bad or comes from political enemies. The First Amendment and the breadth of its protections never changed for that very reason.

But public tastes have changed over the years. Significantly. Popular comedic routines from decades passed are considered objectionable by today’s standards. Today, comedians who make women, minorities or LGBTQ individuals the butt of their jokes can expect that at least some of their audience will push back. In August, popular comedian Dave Chappelle was publicly denounced for jokes he featured in his latest Netflix special that poked fun at the alleged victims of R. Kelly and Michael Jackson and mocked members of the LGBTQ community.

Why has our standard for “what’s acceptable” changed? The evolution stems in large part from having more diverse voices involved in the conversation, with historically marginalized communities taking advantage of increased opportunities to exercise their First Amendment rights and pushing back against speech that denigrates them. The advent of the internet and social media has provided these previously underrepresented groups with new, open platforms to speak out, offer a new and different perspective and generate broader support.

If the history of comedy in America is any indication, this undoubtedly won’t be the last controversy. In many ways, we’re glad that’s the case. These debates push us to revisit our understanding of free speech and look for ways to navigate a complex culture, full of differing viewpoints and experiences. But that can only happen if we look past the surface-level attacks and assumptions. Free speech isn’t always funny, nor is it always easy to understand. And it will continue to breed conflict. But more speech for more people puts us on a trajectory toward a better society.

And whether you’re a comedian that pushes boundaries or a comedian that merely pushes buttons, don’t cry foul or “free speech” when people invoke their own right to free speech and start to push back vocally on your material. The joke is on you, because that’s how the First Amendment works.

About the Freedom Forum Institute

The Freedom Forum Institute, headquartered in Washington, D.C., is the education and outreach partner of the Freedom Forum and the Newseum. The Institute includes the First Amendment Center, the Religious Freedom Center, the Newseum’s education department (NewseumED), special initiatives such as the Power Shift Project, and diversity and inclusion programs. The Institute also supports ongoing programming at the Newseum, including the annual rededication of the Journalist’s Memorial, and “Inside Media” interviews and presentations.

The Institute regularly hosts compelling programs that engage in the central debates of our time, including the role of a free press in a democracy, ongoing threats to journalists, and the significance of religious freedom in a pluralistic society.

Katharine Kosin, Kirsti Kenneth and Pierce McManus, Freedom Forum Institute

We should continue to be a nation of immigrants


I was talking with a friend the other day about immigration. It’s one of the most divisive issues of our time, and we, too, found ourselves divided. “Our country is full,” he quoted President Trump, who said this back in April. Let’s improve the country with the people we already have, my friend added.

I had a quote, too, and it’s one I still believe in. You’ll find it on the Statue of Liberty. “From her beacon-hand/Glows world-wide welcome,” it reads. And then, of course, “Give me your tired, your poor, your huddled masses yearning to breathe free.”

I welcome new immigrants and want this country to set aside the nationalistic appeals and racial prejudice that often accompany calls for restrictions. And I believe firmly that immigration makes us stronger as a nation and represents the best of what we stand for. This country is a defender of individual rights, a beacon of tolerance and equality, and a champion of the notion that offering opportunity to all who live here — regardless of national origin — yields the innovation and hard work that drive our economy and culture.

I could take up the rest of this commentary just listing the immigrants who have enriched the United States, from Levi Strauss, Irving Berlin, and Albert Einstein to Liz Claiborne, Gloria Estafan, Yo Ma, and Patrick Ewing. But it’s not just names you’d recognize. I have a clear memory from my time in Washington, DC, of watching people who’d immigrated literally build the city: its stormwater system, its metro lines, the refurbished Union Station. The same is true in any big city you care to visit in this country — and in our fields and orchards, our hotels and hospitals, our factories, our schools, our startups, our military forces, our movie studios… You get the idea.

Now, I agree that we can’t let everyone into the US who wants to come. We simply don’t have the resources. But that’s a far cry from saying that we’re full, or that we’re facing an immigrant “invasion,” or that large numbers of immigrants are “stealing” jobs from Americans. There’s very little evidence to support any of those claims.

Instead, I’d argue that immigration is an opportunity for the country. One of the first votes I cast in Congress was for the Immigration and Nationality Act of 1965, which prohibited discrimination against immigrants on the basis of their nationality. Instead, it gave preference to professionals, people with skills the country needed, and relatives of U.S. citizens and legal permanent residents.

That same principle is valid today. We have to use immigration to meet our needs, especially in the labor market. Every month for the last year and a half, the US economy has had more job openings than people looking for work. And in a twist from what you’d expect, it’s not the higher-end jobs that face the most acute shortages. It’s health-care, hotel, and restaurant workers who are in the highest demand. In an array of categories, from retail to food processing to landscaping, we don’t have the low-skilled laborers we need. The need for scientists, researchers, computer programmers and other knowledge workers hasn’t abated, either. And nor has the need for workers with skills that won’t soon be replaced by automation.

There was a time when both political parties in this country largely supported immigration. Not unanimously, of course, but they favored immigration in the national interest. I don’t know if those days are over for good; I hope not. Because there is simply no question that this country has been made stronger by its immigrants, and there is no reason to think that will change.

So while I’m not arguing that we should throw open our doors to all comers, we should lean toward openness, recognizing that we have limits and constraints that demand building immigration policy around a principle. And what should that be? That immigration is a powerful tool for meeting our needs, strengthening our labor markets, bolstering our pool of talent, and remaining a beacon to those everywhere who believe that their own hard work, creativity, and entrepreneurial spirit can build their own lives and contribute to the communities around them.

Lee Hamilton is a Senior Advisor for the Indiana University Center on Representative Government; a Distinguished Scholar at the IU Hamilton Lugar School of Global and International Studies; and a Professor of Practice at the IU O’Neill School of Public and Environmental Affairs. He was a member of the U.S. House of Representatives for 34 years.

Lee Hamilton, Center on Representative Government

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