Amendment Rights

As part of Gannett Company, publisher of USA Today, the 5-14-14 online Newark Advocate presented the op ed column headlined “Is freedom of speech a thing of the past” by Ken Paulson. Mr Paulson is distinguished as a member of USA Today’s Board of Contributors in addition to being dean of the College of Mass Communication at Middle Tennessee State University and president of the First Amendment Center. Mr Paulson’s article adumbrates the recent flurry of “first amendment freedom of speech” events headlined within todays popular media — Donald Sterling, Michael Sams, Don Jones. Cliven Bundy could be included though that news event is cycling out rapidly. Suffice to say, folks say the darndest things for which Paulson suggests there may be ramifications (“economic and professional consequences”). All this contributes to the current “conversation” regarding various constitutional rights – freedom of religion, freedom of press, freedom of speech, freedom of gun ownership, and freedom to be considered as a person and not as an entity existing solely in contemplation of the law. We are, of course, a country of law which is what makes the original tenets of the constitution and its amendments the ultimate arbitrator of “economic and professional consequences”. Mr. Paulson contributes to this wide ranging discussion while not making much positive contribution to the why and wherefore of its materialization (which one would hope concerns him). The theory is nice, the practice is otherwise. When it comes to questions of law, contractual law trumps just about everything else (OK, so you can’t contract to be a slave, though it is very difficult to show it as a de facto state if enough contractual language has been employed). The Supreme Court, being the legal interpreter of last resort, has continuously reaffirmed the precedent (and preferred nature) of contracts and contract law. Mr. Paulson chooses to glaringly elide this enormous and active encroachment of “Amendment Rights.”

When it comes to marketing, Pepsico has a simple strategy – buy out the competition. If a start-up begins to cut into some small part of Pepsi’s market share, Pepsi offers to buy them out, and then continue with them as a subsidiary or make them disappear. If the enterprise refuses, Pepsi will utilize their massive presence to market a near identical clone until the results desired are achieved. This is not unique to Pepsi, but rather part of corporate capitalism. Years ago there was “Amendment Rights” consternation over employers requiring employees to not be smokers (including random home inspections), submitting urine samples for drug testing, confidentiality agreements, etc. This has since expanded to credit checks, social media scrutiny, religious doctrine adherence, etc. Since these are person to person contracts, they are all binding legally under the constitution. The US Supreme Court has ruled corporations (the employers) to be “persons” in the eyes of the law. In fact, contractual obligations, responsibilities and determination also are found with most all consumer “purchased” goods and services, from agricultural seed to communications devices, etc. It is increasingly difficult to step outside the fine print within the practice of everyday life, and so it is usually simply disregarded. Until that fine print is crossed, that is. Had Mr. Paulson bothered to consider the material aspect of the practice of “Amendment Rights”, he would have pointed that out. Analysis finds that we may have “Amendment Rights,” we just can’t afford to use them most of the time. “It is difficult to get a man to understand something, when his salary depends upon his not understanding it” (Upton Sinclair)

Survival mode for most today is “Consume, Conform, Keep quiet”. This is unsustainable. Not because of any “Amendment Rights,” but because it violates human rights, what it is to be human. Ages ago Thomas Aquinas introduced the idea of universal human rights because of what was necessary to be human – food (sustenance), water, shelter, and security to live and procreate. Ralph Waldo Emerson thought that half the man is his expression. Codifying what it is to be human, to insure that some other interpretation of social being is not implemented as precedent, is what constitutions, amendments and laws are about. Prioritization and preference of contractual law in the interpretation of social being undermines and erodes any codifications of what it is to be human. Laws, constitutions, markets, organizations and contracts are human creations that can be changed. What it is to be human cannot.



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