No, wrapcycle, Etsy’s policy doesn’t violate the First Amendment2011-01-14
I always find it interesting when someone cites the First Amendment of the United States Bill of Rights—the first 10 amendments to the Constitution—when discussing an action taken by a private organization.
That was the case today in a comment responding to a post by online craft consignment site Etsy, which revised its product policies in response to ongoing criticism aimed at greeting cards sold on the cite that denigrate rape victims and people with Downs syndrome, AIDS and breast cancer. (You can read the full story here.)
The comment, left by someone identifying him or herself as “wrapcycle,” reads…
Not sure the first amendment supports these policy changes. I don’t promote hatred or violence, and I don’t support those who do, but I support their right to express themselves however abhorrent I find that expression. It’s a slippery slope, Etsy.
The First Amendment is usually cited for its guarantee of freedom of speech or the press, although it covers other matters, too. For the record, the Amendment 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.”
The operative words here are Congress shall make no law. If the First Amendment applied everywhere and to everyone, organizations would not be able to discipline or fire employees who engaged in verbal sexual harrassment or racial or religious epithets—or, for that matter, who posted items to Facebook that violate company social media policies. And, of course, there’s the classic example of yelling “Fire!” in a crowded theater (which, despite freedom of speech, is against the law).
Of course, I am not a lawyer, so let’s let someone who is make this point—Karen Sutherland of Ogden Murphy Wallace, writing for FindLaw: “There are no Washington cases that this author is aware of where freedom of speech has been protected under the First Amendment in private sector workplaces.”
Sutherland explains that some laws that may appear to be First Amendment protections actually aren’t: “Punishing an employee because of his religion is not technically a First Amendment violation in the private sector, but it would be a violation of the anti-discrimination laws.” The same anti-discrimination laws prohibit employers from making sexually or racially-charged remarks, which represents a limit on free speech.
It’s sad that people who should have taken citizenship classes in grade school don’t grasp the most basic fundamentals. Etsy’s ban prohitibs “items or listings that promote or support illegal activity or instruct others to engage in illegal activity and items or listings that promote, support or glorify acts of violence or harm towards self or others.”
Like the policy or not, it doesn’t violate any U.S. laws.