The Constitution limits government action. Not the action of citizens. When the Constitution was written it only applied to the Federal Government. The Bill of Rights did not apply to the state governments until the early 19th Century when the Supreme Court started applying the Constitution to the state governments through the Incorporation doctrine. This doctrine interprets the Fourteenth Amendment to apply certain parts of the Bill of Rights to state governments. Not all of the Bill of Rights applies to state governments, but the First Amendment does apply to the states in its entirety.

The First Amendment to the U.S. Constitution reads:

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.

Phil Robertson said some things that people did not agree with. That is one of the freedoms bestowed on us for being Americans. We can do that. Subsequently, A&E decided to suspend Phil from the show. It can do that. If you hired a plumber and he was making statements that you did not agree with, you can simply tell him his assistance is no longer needed. That is not a First Amendment violation; you are not the government. Phil can say whatever he wants. Moreover, he should stand up for what he believes in. A&E can react to that speech in a civilized manner if it decides it needs to, and it should stand up for its beliefs.

There has been a lot of reaction to this controversy, with buzz words like “constitutional violations” and “First Amendment” being used.  But, we are missing the discussion that should happen. I came to work this morning and logged onto Facebook to post a link to the company page and noticed an article. This article stated that the local Sheriff, Phil Miller, is making a business decision of his own: A&E will no longer be welcome to film or produce its programs with the help of the Sheriff’s Office. However, the Sheriff doesn’t make business decisions. He is a government employee and his decisions are state actions.

A&E’s decision to put Phil on a hiatus can be considered speech. Symbolic speech is a legal term in the United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it. Symbolic speech is recognized as being protected under the First Amendment as a form of speech. When Sheriff Phil Miller took state action against A&E for its speech, the First Amendment became part of this discussion. What do you think about your local sheriff deciding what assistance you can get based on your beliefs?