The Tyranny of the Brand

By Charles Pierce, Esquire

20 December 13

What good is a Bill of Rights if it protects us (increasingly thinly) against government, but subcontracts the job of abridging those rights to every other institution that affects our lives and well-being?

s the day went on, I heard an unfortunate number of progressive friends address the issue of the suspension of the crackerfamilias with the flat assertion that the First Amendment doesn't apply to corporations and that therefore, A&E was within its rights to suspend the guy. (Which, as Steve M. points out, isn't really a suspension but rather that the crackerfamilias is sort of banned from A&E world HQ while his program is on hiatus, which many of the show's fans likely believe is a form of hernia.) I do not deny the basic legal correctness of this point, but I do wonder if progressives should be quite so blithe about it.

The Bill Of Rights is supposed to be durable and universal. Now, though, in our schools and in our workplaces, it has taken a severe beating. Regularly scheduled drug testing without cause eviscerates the protections of the Fourth And Fifth Amendments. Just this week, Senator Professor Warren proposed a bill that would decouple credit checks from the application process, which at least is a step toward reasserting a right to privacy. To say that, well, Phil Robertson doesn't have a First Amendment right to a TV show is only to make half an argument. What good is a Bill of Rights if it protects us (increasingly thinly) against government, but subcontracts the job of abridging those rights to every other institution that affects our lives and well-being? As it happens, I had disciplinary action taken against me at the last newspaper I worked for because of things I had written on the Esquire.com Politics blog prior to coming to work here full time. When I asked my immediate supervisor why this happened, he replied, "My primary obligation is to the company." (I looked down to make sure I wasn't wearing a nametag with the word Wal Mart on it.) If I showed you the official letter of reprimand, you wouldn't believe that it actually was written by anyone who worked for a newspaper in any capacity except hawking it from a steam grate. They were within their rights to do what they did, but if you believe in civil liberties, you have to start wondering how truncated those liberties are in daily life.

And my favorite left-wing left-winger passes along another story from within this rapidly expanding gray area.

According to the new policy, "improper use of social media" includes any "communication through social media that":

"ii. when made pursuant to (i.e. in furtherance of) the employee's official duties, is contrary to the best interest of the university"; "iv. subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker's official duties, interferes with the regular operation of the university, or otherwise adversely affects the university's ability to efficiently provide services. "In determining whether the employee's communication constitutes an improper use of social media under paragraph (iv), the chief executive officer shall balance the interest of the university in promoting the efficiency of the public services it performs through its employees against the employee's right as a citizen to speak on matters of public concern, and may consider the employee's position within the university and whether the employee used or publicized the university name, brands, website, official title or school/department/college or otherwise created the appearance of the communication being endorsed, approved or connected to the university in a manner that discredits the university. The chief executive officer may also consider whether the communication was made during the employee's working hours or the communication was transmitted utilizing university systems or equipment. This policy on improper use of social media shall apply prospectively from its date of adoption by the Kansas Board of Regents.

Does your job own your civil liberties when you're off the clock? Does it own your thoughts, expressed freely, when you're home? Are we saying that the government can't abridge your constitutional rights, but that The Brand can? If you answer instantly, "yes," think again about what you're saying, and about the kind of country in which you want to live.

Charlie has been a working journalist since 1976. He is the author of four books, most recently "Idiot America." He lives near Boston with his wife but no longer his three children.