Wednesday, April 18, 2012

7 comments Jen Engel Is Wrong, the First Amendment Doesn't Cover This

Jen Floyd Engel, who overall I think is a fine writer (see, I can be positive!), has her take on the Ozzie Guillen "Castro" comments. She thinks the first amendment should take precedence over political correctness. While I do agree with her on that in general, where she is blatantly wrong is Ozzie Guillen is an employee of the Miami Marlins and they can suspend him or punish him in any way they see fit because of this. So this isn't a freedom of speech issue.

This where I miss Jay Mariotti and his obvious anti-Blizzard of Oz bias. He would have written a craptastic article that I could have covered at length. Nothing any other writer could write would top the drivel Jay Mariotti would have churned out. I'm sure Mariotti would have written something that suggested Ozzie Guillen be deported to Cuba or something stupid like that. Mariotti could always be counted on for some Ozzie Guillen idiocy.

Anyway, on to Jen Engel's column about the first amendment and how it doesn't pertain in this situation at all. This is also a story of media hypocrisy, which I am happy to comment on.

My love of the Miami Marlins manager is admittedly selfish. In an industry loaded with PC phonies too scared to say anything of any substance, he is honest — refreshingly so and, yes, also frustratingly so at times.

This is very true, but what is so unnervingly annoying is how the media loves Ozzie for all of these reasons and then immediately turns on him once he says something too refreshing and honest. He's great for a quote, but mostly he is great for a quote that can be turned into a story that can be sensationalized. It's what the media loves and why I believe athletes never really say anything of substance. The media loves Ozzie because they help to give them stories they can write about. When he says something "inappropriate" they love to jump on him for saying something inappropriate. The stories almost write themselves.

He lacks a filter, which journalists love until lack of such leads to speech that we disagree with; then we become raging hypocrites about how he needs to zip and shut.

This is absolutely very, very true. It's fun to get spicy and exciting quotes. Journalists even complain that coaches and managers aren't exciting enough, but then once a coach or manager says exciting and shows some character the media proudly announces when that coach or manager has stepped over the line. It's a game of "Come on, say something interesting so I can criticize you for saying something interesting."

Of course, the only thing journalists love more than the unfiltered soul is the First Amendment.

Well, naturally. Without it, it would make it hard to write columns if the First Amendment wasn't in place.

The founding fathers delivered this amazing article, the Constitution, and immediately began amending. What they did with the First Amendment was lay the foundation for all that we hold dear.

Sounds like someone wants to take a trip to Monticello. I've already delivered one Revolutionary War-era semi-history lesson lately, so I won't make it two. Regardless, everyone loves the First Amendment. Unfortunately, the First Amendment doesn't apply to the employer-employee relationship all of the time. So the Marlins can punish Ozzie Guillen however they see fit for anything he may or may not say. That's how it works when you work for someone else. It doesn't mean we have to like it, but in an employee-employer relationship this is how it works at times.

Which brings us back to Ozzie, because what he said to Time magazine (“I love Castro”) and what eventually happened to him as a result (a five-game suspension with firing still a possibility) demonstrates how cheaply we give away what we claim to value.

Unfortunately, the First Amendment and freedom of speech doesn't necessarily pertain to this situation because an employer has the ability to punish an employee for behavior they don't agree with. Obviously the employee could appeal this punishment in some way, but Ozzie Guillen saying something positive about Castro is punishable by the Marlins. Freedom of speech isn't really given away in this instance because Guillen represents the Marlins and his comments be construed as representing the opinion of the Marlins organization.

Free speech cannot be a basic tenet of democracy if the only speech we are willing to defend is intelligent speech, or kind speech, or speech with which we happen to agree.

I 100% agree. If I say something inflammatory in the course of my day to someone, then I have the freedom to say that. If I say something inflammatory and it somewhat affects how people view me or my employer, then my employer could theoretically punish me in some way for this. So the Marlins and Ozzie Guillen really aren't shirking the ability to use the First Amendment as a defense, it simply doesn't apply in this situation because Ozzie's employer can punish him for what he said.

The real tests come from the mouths of people we abhor saying things we believe in our heart of hearts to be ignorant, pigheaded and wrong.

In general, this is absolutely true. The issue is that if I am employed by X company and I say "Saddam Hussein had some really good ideas," to a media outlet then my employer has the right to punish me based on my statement. Yes, I have freedom of speech and I won't go to jail for what I said, but my employer has the ability to punish me for my statement.

And yet this speech must also be protected: The right to an opinion we hate is what separates us and ultimately what makes us great.

Again, Ozzie has the right to say what he wants. He didn't go to jail for his statements, but freedom of speech doesn't mean there can't be some consequences for your statements. I have the right to bear arms. If I use my gun to shoot someone, then the issue isn't my right to bear arms, but the action I took with that right which will cause me to get punished. Guillen has the right to freedom of speech. If he uses this right to make a statement saying Castro is a good guy, the Marlins can punish him.

This is why I defend Ozzie’s right to be completely wrong about Castro and abhor what the Marlins did in response.

The Marlins are located in Miami which is home to (and contains a large fan base) of many Cubans. It makes good business sense to not be the team that has the manager who kind of likes Fidel Castro. They had to punish Guillen in response to his statement.

Business, specifically, is allowed to punish speech it finds offensive. All of this is true, and more frightening than government interference.

I don't think this is any more frightening than it is a reality. If I call someone who walks in my office a "fucking fag--t piece of shit" (which I would not do), I'm pretty sure my employer has the right to punish me. In the realm of the workplace it is very much understood this type of behavior isn't acceptable. To make matters worse for Guillen, he is a public figure, so anything he says is going to be magnified in scope by the media.

Of course, we should not be surprised when free speech loses to free market; what I am surprised by is how willingly we concede the fight — ignoring the long-term ramifications of our cowardice.

I don't know if I would describe it as "cowardice." This is just how the world works. Ozzie Guillen will look even worse if he defends himself by saying, "I may have gone over the line, but I have a right to admire Fidel Castro. If the Marlins try to suspend me for my comments I will fight it in court."

This will end up making him look worse and the same media who love the First Amendment would jump all over him in the worst way. There's no point in fighting it. Just don't say anything stupid. That's probably the best overall rule. Fighting to defend an offensive thing you have said only serves to make you look even worse.

He did not embezzle money, abuse his wife, drink and drive, kill somebody, say President Obama is not a citizen — as Tampa Bay Rays designated hitter Luke Scott (then with the Baltimore Orioles) did a couple of years ago. Guillen uttered an opinion that a very vocal and powerful group of citizens (also a target demographic of Marlins owner Jeffrey Loria) disagreed with, and thus they want him silenced.

Yes, this is very true. This is mainly news because Guillen manages the Miami Marlins who want fans of Cuban descent to show up to the games so their bright and shiny new stadium doesn't end up half-filled. I don't think this would be as big of a deal if Guillen was still manager of the White Sox. In fact, it wasn't an issue a few years ago when he made similar comments about Castro. Frankly, the Marlins need attendance and the last thing they need is a boycott of their games by angry fans who don't like that Ozzie Guillen was unpunished for what they perceive as offensive comments.

And which is worse: a baseball manager saying something nice about Castro, or the United States having friendly relations and trade agreements with Saudi Arabia

While this point may be valid in a larger context, in regard to sports this is a terrible comparison. These are two completely separate issues that are being compared and it just doesn't hold up very well.

One could excuse Leonard Little's drunk-driving murder (sorry, manslaughter) of Susan Gutweiler and say, "And which is worse: a football player driving drunk and killing a woman or the United States having friendly relations with China when they commit human rights violations and stifle dissent by jailing those dissenters?"

Simply put, this isn't a good comparison at all between Guillen's statements and US relations with Saudi Arabia.

Silencing Ozzie is about censoring (via boycott and threats) an opinion they find abhorrent, and this infringement on speech is even scarier than anything government could dream up.

Except, freedom of speech doesn't always extend to the employer-employee relationship. A big issue where I live is Amendment One, which is an attempt by North Carolina legislators to define marriage as being between a man and a woman. If I was very vocal in my support for this amendment and perhaps went a bit overboard in my support for this amendment by calling those who like same-sex marriage very nasty names, and my employer heard about this, they could theoretically fire me or punish me in some way. This is especially true if my employer is somehow tied to my comments, like if I was identified as an employee of where I work. Yes, I have freedom of speech, but the way I used my speech is actionable by my private employer.

Yes, it is infringement on speech, but North Carolina is an at-will employment state and I can be fired for pretty much anything that isn't discriminatory.

Yet we are slowly headed down a road where the only opinions safe to utter are the banal and benign — Castro is bad, "Bountygate" is bad. Calipari is bad, and on and on.

We've been at this point for a while now. Public figures say dumb things and then have to apologize to those people offended.

We say we want honesty. We say we want free speech. Then let’s see us defend Ozzie’s right to be wrong about Castro. Because all Ozzie really did was start a dialogue.

It forced people to talk about Castro and why admiring him is simply ridiculous and what he actually has inflicted upon countless Cubans and why so many Cuban-Americans rightly view him on par with Hitler.

So Ozzie Guillen should be credited for his stupid comment starting a discussion? I'm all about starting a public discourse, but it seems far-fetched for Guillen's comments to be forgiven because it helped to open a dialogue.

What if an athlete does an interview with Time where he says abortion is murder and he believes women who have them should be tried as such?

Then his team could theoretically punish him for these comments. It's pretty much agreed upon that Fidel Castro is an asshole, which is generally agreed upon. There are candidates who run for President based on the idea abortion is murder (in essence), so that in itself isn't objectionable. As far as trying women for murder based on having an abortion, well, abortion is legal in the United States so this point of view just seems extreme and more far-fetched than a person's favorable opinion of Fidel Castro would be considered far-fetched.

Should a team be allowed to suspend him?

Yes, they should be allowed to suspend him. I don't like it necessarily, but the team can suspend this player. The player also has a right to fight this suspension if he chooses to do so.

Or what if a player is Jewish and says he does not believe Jesus is the Messiah?

That's sort of understood isn't it?

Should the team be able to suspend him if enough season-ticket holders are Christian and object?

Probably not. This player is espousing a widely-held religious belief so I'm not sure Christian season-ticket holders would object. Maybe they would. I don't always understand people.

Ozzie has to be free to say he loves Castro, and it is up to us to fight those entities — government or business or other — seeking to censor him.

In this case, it would be up to Ozzie Guillen to fight the suspension, which he didn't do. I don't know if anyone is looking to censor Ozzie Guillen, but the Marlins are looking to punish him for comments that could negatively affect the fan base.

It is not because we agree with the speech. It is because to do anything else is to say we no longer believe in the foundation on which it stands.

Again, this isn't the government limiting Ozzie's free speech. This is his employer limiting what he says for business reasons. What Ozzie said doesn't really fall under the First Amendment, but falls under what an employer can punish an employee for saying.


HH said...

One thing that isn't made clear in the article or the criticism: the Marlins can punish Ozzie ONLY because his contract specifies this. The First Amendment does indeed protect Ozzie: he can say what he wants without fear of government prosecution, and without fear of sanctions from anyone UNLESS he explicitly gives someone the right to sanction him. The standard player or manager contract includes a clause by which management can punish the player/manager for conduct detrimental to the team or franchise. The only reason the Marlins can punish Ozzie is because of this clause.

This doesn't change the article - it's still way off. The First Amendment doesn't protect you from criticism or embarrassment. It's also not implicated here because the government isn't attacking Ozzie. Ozzie merely chose to limit his First Amendment right by granting the Marlins the power to punish him if he does certain things. (In exchange, of course, Ozzie received several million dollars.)

Anonymous said...

Well said HH. Journalists seem to take the 1st amendment and stretch it beyond its original intention.

Guillen wasn't arrested for what he said. He was rightfully disciplined by a private entity with which he had entered into a binding agreement. Ostensibly the agreement meant he was to conduct himself in a manner appropriate to the Marlins' code of ethics and with their private interests at heart in exchange for millions of dollars in salary.

Not seeing the persecution here...

Bengoodfella said...

HH, that is a good point. I didn't think of that nor did I address it (because I didn't think of the clause). The 1st amendment is here to protect speech from government persecution, but a person can explicitly allow someone to sanction him. Clearly, the Marlins can do that. So this really isn't a 1st Amendment issue any more than anyone can be sanctioned by their employer for saying something dumb/offensive.

Anon, don't you think sometimes we forget the 1st Amendment isn't here to protect us from criticism or our employer sanctioning us, but from government persecution for language they don't agree with? It prevents citizens from being jailed or persecuted in some way for speech a public entity doesn't agree with. The amendment is about the government persecuting people, not about an agreement b/w a citizen and private entity in an employment situation.

Even Ozzie said he was wrong and the Marlins can sanction their employee how they see fit.

jacktotherack said...

Well said by everyone. My conclusion from this is Jen Engel is a moron who lacks a basic understanding of how contracts and The Constitution work.

Bengoodfella said...

Jack, not a bad conclusion. It's clear she wants the Constitution and contracts to work one way that they don't work. We are so lucky in this country that the idea of getting persecuted by the govt for holding an opinion doesn't seem fathomable.

Mozzer's Mazda Mishap said...

I don't see how Engel can tie this to the First Amendment when this is clearly a workplace issue. This isn't about Ozzie making a "political statement." It is Ozzie pissing off his bosses and facing the consequences.

Here's a hypothetical: if Engel marched into her editor's office and said, "It has come to my attention that your great-great grandfather was a slave owner, and because of that, I think you are a knob-gobbling assfuck" and was subsequently fired, would she assert that her First Amendment rights were violated? I would like to think not.

Bengoodfella said...

Mozzer, I think that's the way I see it as well. It's a workplace issue. I would get in trouble if I said something inappropriate to a co-worker. I can get sued for sexual harassment and still have the 1st Amendment right to see my co-worker is fat and ugly.

I think Engel would probably be better of not saying that in that specific situation! But yes, she would know better to say that b/c she could very well get fired.