Issues, issue spotting, and issue muddling

Posted by Julia Belian
Julia Belian
Associate Professor Julia Belian, although less than a century old herself, find
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on Friday, 20 December 2013
in Faculty Blogs

One of the things we learn to do in law school is to "spot issues," as they say.  The label is somewhat misleading; you probably already see issues all around you.  The skill we learn in law school is really more of a skill at distinguishing issues:  Distinguishing similar issues from each other, distinguishing relevant issues from irrelevant, distinguishing issues that require one set of legal rules to solve from those that require another.

If you have a facebook account, and quite probably even if you don't, you should have heard by now of the "Duck Dynasty" controversy.  Phil Robertson, one of the stars of that show (which airs on A&E), made some statements in an interview in GQ that upset many, precipitated his suspension from the hit show, and ignited a firestorm of commentary on social media as people discussed and argued about the "issue." 

The so-called "Duck Dynasty" controversy, however, is a great example of muddled issues. Someone very dear to me asked what I think about "this Duck Dynasty fiasco." But I can't answer that question, because there is no single "Duck Dynasty" controversy. Each person who posts what they think about "it" means something fairly specific, but I can identify at least six different "its" bouncing around. Do I have an opinion about "it"? In fact, I have several opinions, each corresponding to one of the many controversies embedded in this public dialogue. (And I bet there are even more issues than the ones I can easily identify.)

Does Phil Robertson have a right to his own opinion about the morality of [fill in the blank]?
Of course he does. I am not sure very many people are even debating this issue. I rather suspect that those who respond to A&E's decision with "He has a right to his beliefs" feel that their own beliefs (possibly agreeing with Mr. Robertson) have become unacceptable in polite company. That is a frustrating feeling, as most of us know first-hand. We all think something that is not an acceptable thing to say in some company we keep - be it work, family, church, friends, or the grocery store. Most of us choose self-censorship over public censure, and the emotional cost of that can boil up suddenly when given a venue. But I have not really noticed anyone claiming Mr. Robertson does not have a right to a free conscience and free belief, whether the topic is a matter of faith, morality, politics, economics, or anything else.

Does Phil Robertson have a right to express his opinions about [fill in the blank]?
Under the First Amendment of the U.S. Constitution, of course he does, so long as his expression does not cross certain lines (e.g., "fighting words") detailed in a very long list of U.S. Supreme Court decisions (which you will learn about in detail in either Constitutional Law, First Amendment, or both). I do note some people getting more bristly on this question; that makes sense, because every one of us would bristle at some kinds of speech. Doubt it? Think of what you treasure. Now imagine me posting that it I think what you treasure is sick, sinful, immoral, or should be illegal. In my original facebook post of this essay, I included some fairly offensive statements, which I am deleting for this blog post .... You see, even I know better than to go there, but I could - I have a right to. Love does not always exercise its rights, but that doesn't mean they don't exist.

Does A&E have a right to limit Phil Robertson's expressions of his opinions about [fill in the blank]?
In the world? Of course not. On the airwaves they pay money for? Surely you do not question that! The essence of "private property," one of the keystones of our freedoms, is the right to exclude. I can legally refuse you entry to my property, provided it has not somehow become "public." Mr. Robertson has the right to express his opinions in any public space, but not in my house, not if I don't let him. Nor do I have a right to express my opinions in your house. (Hint: If you don't like what I am saying, quit reading!) And this is what most people are arguing about, whether they know it or not: Is A&E a "public space," like the sidewalk in front of the White House? The legal answer, in my opinion, is NO. We might disagree about that, but think it through: It's a cable channel. People have to pay to get it. People have to choose to hear what he thinks. Oh, but wait, he said it in GQ, not on A&E! See next topic.

Does A&E have a right to fire Phil Robertson because of his opinions about [fill in the blank]?
If those amount to religious beliefs, as they appear to, the answer should be NO. See above re: First Amendment rights.

Does A&E have a right to suspend Phil Robertson because of his public expressions of his opinions about [fill in the blank]?
Ah, now THIS is a trickier question. Well, it appears to be. I hate to break it to you, but legally, this is not really much of a question, either. With the exception (last I looked) of Wisconsin, every state in the U.S. is an "at will" state, meaning that employers and employees alike are free to terminate their employer-employee relationship at will, which is to say, at any time, for any reason, or for no reason at all, so long as it is not for an illegal reason. What would be an "illegal reason"? Any reason prohibited under either the Constitution, federal law, or state law. And as much as I might personally regret the fact, it is indisputable that in most states, and at the federal level, expressing an opinion about sexual orientation is not a prohibited reason. In most states, I can be fired for being gay - or for being straight, as far as that goes. In most states, I can legally be fired for stating my opinions about most topics. There are limited exceptions, but even on the topic of religion, I do not have unfettered freedom to offend people at work. I have no right to proselytize for or against my personal religious beliefs or my opinions about much at all if it undermines my job performance. Don't like that? Advocate for a change in the law.

Does Phil Robertson's public expressions of his opinions about [fill in the blank] undermine his ability to do his job?
Reasonable people may disagree about this. But as a former employment lawyer, my experience tells me that if your job is to be an on-air personality for the purpose of winning sponsors who buy ads to make the network profit, and if you (for any reason) lose the ability to do that - your show loses popularity, you drink and drug and don't show up, or you show up and you're intoxicated, or you start fights, or you start fires, or you fail to stop other fire-starters - in other words, if, for any reason, you lose the ability to make the network money, then the network may fire you (or, as with Mr. Robertson, suspend you). If I am an advertiser or a director, I would say (as a good capitalist) that they had better! Do you want to be able to fire people you think are hurting your company? All right, then. God bless America.

Could A&E be wrong about that?
Of course. But there's no law against being wrong. Or stupid. Or mean.

What if Mr. Robertson has a contract?
Then there is a very good chance the terms of the contract explicitly give the network the right to take this action. It may also be that Mr. Robertson's actions were prohibited under some provision of the contract.  It would be interesting to read that contract, wouldn't it?

Do I have to like it or agree with them?
Of course not. See above, re: freedom of opinion.

Do I have to like or publicly accept [gay people] [anti-gay people]?
Of course not. See above, re: freedom of opinion.

I read an interesting post by a gay man who said he still likes the show and forgives Mr. Robertson. He wrote that DD is all about love and forgiveness and accepting the love of God, and that Mr. Robertson really does not think he has a right to judge, he just believes what he believes. I found that very persuasive. What do you think?
Personally, I have no problem with that, and I think that gay man is very big-hearted and near to the Kingdom of God. But there is a concept in law called "standing" that I think applies here, at least metaphorically. That gay man may forgive Mr. Robertson all day long for the wrongs Mr. Robertson has done to him - but he cannot forgive him for wrongs done to others. He does not have that right. He does not have the "standing," so to speak, to act for others in that regard. Think about another hot facebook issue - the young man who got off with a light sentence after driving drunk and causing several deaths. Why does that anger us so much? Partly because it seems to ignore reality and law, but also, I think, because we understand at a deep level that the judge had no right to forgive that wrong. Even the victims' families don't, because it is a crime not only against them, but against our society, as well.

Insofar as Mr. Robertson has hurt me, only I can forgive him. Insofar as Mr. Robertson has hurt that forgiving gay man, only that man can forgive him. Insofar as any person says anti-Semitic things, I cannot forgive them, because I am not Jewish and they did not attack me. Insofar as any person says racist things, I cannot forgive them on behalf of black people, because I am not black. Insofar as any person says anti-gay things, I can forgive them for myself or not, but that is MY choice. And I suspect you would not want it otherwise.

What are we arguing about?
I forget.

About the author

Julia Belian

Associate Professor Julia Belian, although less than a century old herself, finds deep satisfaction in learning and teaching the ancient roots and contemporary twists of Property Law and Estates & Trusts, which are also her primary areas of scholarship. Before joining UDM in the fall of 2008, Belian served as a Visiting Associate Professor of Law at the University of Missouri-Kansas City from 2006-2008, where she was given the Tiera Farrow Faculty Award by the Association of Women Law Students and was also named Most Outstanding Professor by the Graduating Class of 2008. From 2002 to 2006, Belian was on the faculty at Creighton University School of Law in Omaha, Nebraska.

Belian’s higher education began in her native Texas, where she earned a Bachelor of Arts degree in Philosophy cum laude in 1980 from Southwestern University in Georgetown, Texas. She worked as an editor at a mid-sized daily newspaper for nearly ten years before earning a Master of Divinity degree at Yale University in 1993 and her J.D., with distinction, at Emory University in Atlanta, Georgia, in 1996. At Emory, Belian served as Editor-in-Chief of the Emory International Law Review, received the Clark Boardman Callaghan Award for Outstanding Contribution to the Law School, and was elected to the Order of the Coif. She has practiced in both Minnesota (Faegre & Benson, LLP) and California (Morrison & Foerster, LLP), with most of her experience in the fields of estate planning and exempt organization law.