Bill Cosby and the First Amendment

bill-cosby-himselfLegendary comedian Bill Cosby has been getting a spate of unwanted press over the last few weeks. He apparently had a long-standing reputation for sexually assaulting women, including a well-publicized out-of-court settlement in 2006, but somehow he managed to avoid prosecution or significant professional consequences. That all changed this fall when stand-up comedian Hannibal Burress made reference to Bill Cosby as a rapist in one of his routine. The segment went viral, and within days Cosby was facing mounting heat as more and more women stepped forward to tell their stories – some of which date back nearly 40 years.

One of the effects of this scrutiny is that Cosby’s NBC show (which was still only in development) was canceled by the network, and Netflix indefinitely postponed the release of a comedy video. The comedian’s defenders immediately protested, and many expressed that they felt his First Amendment rights were being violated. Let’s look at what this important part of the United States Constitution does – and does not – protect, and see how that is relevant in the case of Bill Cosby.

The amendment “prohibits the making of any law respecting…abridging the freedom of speech…” While the term “freedom of speech” has many meanings, and has become a quintessentially American mantra over the last 200+ years, in court cases it is generally applied to legal restrictions on an individual’s ability to express his or her opinions. No one has passed any laws prohibiting Bill Cosby from speaking publicly or privately, so from a constitutional standpoint his freedom of speech has not been infringed upon. Rather, several corporations have decided not to pay him for using their platforms as vehicles to entertain (and generate revenue…)

This is a huge difference. Cosby, or just about anyone else, is legally allowed to freely share insights and opinions, but we are not guaranteed a platform to do so. While one may question the wisdom of NBC and Netflix, there are absolutely no constitutional issues in play. This also goes for the “Duck Dynasty” folks, who show was canceled when one of the cast members began making anti-gay remarks. Their freedom of speech was not attacked in any way, although their ability to reach large numbers of people will certainly was.

This leads to some fairly fundamental issues, even if they don’t have constitutional implications. Most media outlets have tended to stay away from giving voice to extremists, people violent opinions, and those deemed to be too far outside the norm to deserve a platform. So whether a person is an accused criminal, a devotee of an unusual conspiracy theory, or simply unpalatable to the masses, it is unlikely that he or she will get access to the public through the mass media.

This is where the Internet comes into play. For the first time in human history absolutely anybody can reach a global audience completely independently of existing media outlets. It often lacks the financial benefit of being on television or radio, but it seems that everybody has a YouTube channel and a blog even if the big money doesn’t flow. A lot of the speech is objectionable, as are many of the presenters, but at a certain point this all comes down to taste and comfort level rather than legality. So Bill Cosby can say whatever the heck he wants, even if nobody pays him for it.

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