Last year, after Big Love star Chloe Sevigny trash-talked her show’s season, calling it “awful,” we took our dear readers through the ins and outs of non-disparagement clauses in celebrity contracts, and how they can (or can’t) prevent stars from criticizing a show or movie while simultaneously making bank on it. (Along the same lines, stay tuned for our much anticipated analysis of the dispute between Charlie Sheen, CBS/Warner Bros., and showrunner Chuck Lorre. Sneak preview: we will not be able to restrain the urge to make extremely obvious and ubiquitous “tiger blood” and “Adonis DNA” references.)
But what happens when a star makes comments that are not disparaging to the star’s current project or boss, and instead are just generally perceived by certain people (or everybody) as offensive or insensitive? Surely the First Amendment must protect this kind of speech!
Not so fast, Dr. Laura. Because as we like to say around these parts, the right to free speech is not the right to consequence-free speech.
While the First Amendment generally protects abridgments of speech by the government, it does not automatically protect against all consequences that flow from private parties’ reactions to that speech, including loss of employment, loss of endorsements, or (duh! [not winning.]) people thinking you’re a big jerk. This issue came up famously last fall, when Dr. Laura Schlessinger went into a tirade in which she used the “N-word” 15 times and subsequently announced that she was leaving her radio program to “regain” her “First Amendment rights.” Dr. Laura may be a lot of things, but a constitutional scholar she is not. She claims she was “silenced” when in reality, her comments inspired advertisers on her show to pull their endorsements. Dr. Laura may have a right to say what she wants (with exceptions covered in prior blogs) — but she doesn’t have a constitutional right to get paid to say it. Moreover, the sponsor boycotts threatened by offended members of the public were themselves a form of political speech, which is just as protected by the First Amendment.
For some reason, this issue has reared its head in the wake of the devastating earthquake and tsunami in Japan, which has been fodder for insensitive comments and tweets from various TV, radio and music personalities, including Rush Limbaugh, Glenn Beck, 50 Cent, and Gilbert Gottfried (also known as the now-former voice of the Aflac duck). While Limbaugh and Beck have escaped unscathed — after all, if their employers or endorsers shied away from controversial comments, they would have been out of a job long ago — Gottfried was fired by Aflac and the duck will soon be getting a new voice. (Although, in fairness to Gottfried, and to paraphrase Charlie Sheen, didn’t Aflac know who they were giving all that endorsement dough to? Apparently, this most-offensive-least-safe-for-work-joke-in-history [you've been warned] wasn’t enough to get him fired, but a few bad-taste gags about Japanese real estate were.) Other celebrities including Joan Rivers and Howard Stern leapt to Gottfried’s defense, but Gottfried himself has issued a public apology. (For his part, Charlie Sheen, while not holding back on his bizarre commentary on a host of subjects, is actually stepping up with the Japan relief efforts by encouraging fans to donate and by donating $1 per ticket from his awesomely named My Violent Torpedo of Truth/Defeat Is Not an Option Tour to the American Red Cross.)**
Regardless of how you feel about the comments made by any of the above individuals, the fact remains that the great nation in which we live affords you the right to say what you want without the government smacking you down, so long as you do not abuse that right (see all ourprior posts on defamation and other exceptions). But the Constitution alone won’t save you if your boss, sponsors, or the general public are offended by what you’re saying. So keep that in mind when you speak (or Facebook or Tweet), or be prepared to go down fighting.
Till next time, stay classy, Law Law Land.
** We at Law Law Land extend our sincerest condolences and well-wishes to the residents of Japan and encourage our readers to (in this respect, and this respect only) follow Charlie Sheen’s lead.