by Brendan Beery
I once called Sarah Palin an idiot in front of a classroom full of 50 or 60 students. One student, who didn’t know what he was getting into, piped up about a gaffe that had tripped up Barack Obama, after which he asked, “Why don’t you call him an idiot?” This was a grave miscalculation. I removed my glasses (for good effect), walked slowly to the part of the lecture hall where the student was seated, and cleared my throat. “When President Obama accidentally misspoke,” I said, “that was called a mental hiccup. We all have those. A person is not an idiot because he occasionally says something stupid. He’s an idiot if he never says anything smart.” I left my gaze on this student just long enough for the class to understand that I hadn’t only been talking about Sarah Palin or Barack Obama. The room erupted into laughter, and I’m pretty sure students weren’t laughing at me.
What I was talking about during that lecture, substantively, was state action – something I’ve now addressed on this blog several times (here and here, for example). It is one of the simplest concepts in all of constitutional law: the Constitution is directed to governments. With the exception of the Thirteenth Amendment, the Constitution says nothing about private conduct or choices; it creates, empowers, and restrains governments.
Say you’re the principal of a Catholic high school. You catch two students, Johnny and Jane, achieving congress in the janitor’s closet. After taking some snapshots of the coital undertakings in progress, you drag the two to your office, call their soon-to-be-mortified parents, and suspend the two for a month without so much as asking them about their versions of events.
Johnny’s lawyer sues you for violating Johnny’s right to due process – notice, a hearing, and an impartial decision maker – under the Fourteenth Amendment’s Due Process Clause.
Your lawyer will move to dismiss. That motion will be summarily granted, and as Johnny’s lawyer turns tail to leave the courtroom, the judge will say, “Not so fast. I haven’t imposed sanctions yet.” Every lawyer in the courtroom – save Johnny’s – will cluck and sneer and cackle. Here’s why: a Catholic school is not a state actor. The Fourteenth Amendment only stops governments from denying due process, not private schools. The same goes for every jot and syllable in the Bill of Rights: none of it – not freedom of speech, not freedom of religion, not freedom to bear arms – none of it compels or restrains private parties.
One would think that Sarah Palin, as a former governor and Republican VP nominee, would get that. But for years, when Palin or her agenda has been criticized or rejected by private media outlets, she has frequently bellyached about how those private outlets have somehow run afoul of the First Amendment.
Although she didn’t refer to the First Amendment this time, she’s at it again. About ESPN’s suspension of Curt Schilling, Palin wrote, “By picking and choosing who they’ll tolerate and who they’ll try to destroy, ESPN has zero credibility as a sound and reasonable media outlet.”
Plumbing the depths of Sarah Palin’s stupidity is dangerous – kind of like using a Ouija board to summon a demon. One approaches the task with the faint suspicion that he might get stuck in another dimension.
This is a person who is so profoundly unstudied and unknowing that she thinks it’s a bad thing for a private media outlet to be “picking and choosing who they’ll tolerate …” It would be one thing for a government to pick and choose who — or whose message — it will tolerate. But not only is that the legitimate function of a private media outlet; it’s a necessary function. And not only is it a function of media outlets; it’s a function of all human social interaction. We all decide who (or what ideas) we will tolerate or associate ourselves with, and if you run a media outlet, you had damn well better.
But Palin thinks that ESPN’s rejection of Schilling’s idiocy is an affront to free expression, principles of fairness, and “journalism” (as though journalism is ESPN’s concern). The demon has been unleashed anew. Pray God we may return unscathed to the dimension of sanity.