Is freedom of speech truly a revered principle in this country, or is it merely a nice suit we wear on special occasions? Does support for the First Amendment last through the tough times of the nation, or do we simply set it aside when doing so serves the majority's purpose? Two weeks ago, Bill Maher, host of "Politically Incorrect," got himself into some perilously hot water during a discussion on his show of the terrorism of Sept. 11. Author Dinesh D'Souza, a guest that night, said that he took exception to the description of the hijackers responsible for the terrorist attacks as "cowards." Maher concurred, saying "We have been the cowards, lobbing cruise missiles 2,000 miles away. That's cowardly. Staying in the airplane when it hits the building, say what you want about it, it's not cowardly."

The blistering response following the show cowed him into an immediate and abject apology, two major companies pulled advertising from the show, and ABC issued an official condemnation of Maher's remarks, although it did not go so far as to pull the plug on the show itself. But why did his remarks draw such heat? They were certainly not very politically correct, but then again, look at the name of the show. And they didn't pass judgment on the moral right- or wrong-ness of the attack or our response: he simply agreed that there's a big difference between pressing a button and committing an act that will necessarily result in your own death.

The widespread outcry about his remarks is simply the most extreme manifestation of the patriotic ardor sweeping the country at large. There are flags and ribbons on every other backpack on campus, flags on fire trucks, sunlit boxer shorts, and slogans like "God Bless America" plastered in every fast food window you pass. The sudden appearance of red, white and blue everywhere isn't the only symptom of our newly invigorated "patriotism." Reference to the terrorists as anything but inhuman, satanic monsters is now un-American. Nobody should be questioning why the terrorists acted as they did, because any consideration of their motives is immediately pounced upon as "blaming America." We don't need to "understand" terrorists killing them all will eliminate any further threat. Now is not the time to disagree with the President we must uncritically stand behind any and all actions Bush sees fit to take. And if that means giving the government the power to detain immigrants indefinitely without charging them with a crime, well, we're talking about national security!

I have a large problem with this kind of attitude. Unquestioning, unthinking loyalty is un-American. Compelled conformity, robotic flag-waving, and "My country, right or wrong" have never been characteristic of our great nation, not since the first "Don't Tread On Me" flag was waved under a monarchist's nose. The whole point of fundamentally American documents like the Bill of Rights is safeguarding minorities from the majority. The founders saw some ideals as so vital, and so critical to a functioning democracy, that they must be protected even when they're unpopular. Even when most of the country might be willing to give them up. Even in times of threat, even in times of war, even in the worst times we could possibly imagine. We fight to preserve these rights because attacks upon America are most effective and most destructive when they erode our commitment to the democratic values that make the United States a unique beacon of freedom and liberty to all humankind.

Hatred, fear and the understandable desire for retribution must never make us unwilling to listen to the voices of dissent. When publicly-enforced conformity and unthinking adherence to what the government tells us we should be doing precludes any contrary opinion from being expressed, we're little better than the "evil forces" we're fighting. In Saira Shah's documentary "Beneath the Veil," a horrific report on the oppression of women in Afghanistan that was rebroadcast this weekend on CNN, a member of the Taliban's "Vice and Virtue" police describes who he's supposed to arrest. The list includes anyone who disagrees with the Taliban; anyone who has ever said a word contrary to Taliban policy. Dissent does not mean disloyalty. National unity does not require everyone to agree. We can stand with our countrymen and hope that those responsible for the attacks are brought to justice without agreeing completely with every policy advanced by the president, without supporting loss of the civil liberties John Ashcroft thinks we should give up, and without refusing to even consider why people like Osama bin Laden hate us so much. We can even be patriotic without wearing a flag. That is the true American way.

The freedom to act does not exempt one from the consequences of that action. The Constitution describes government action, not popular opinion. No one kept Maher from speaking his piece. Companies simply said "we will not pay you to say that." Nothing could be more American than that. If someone attempted to harm him, the police would enforce the law as they normally do. If Maher had gotten on the air and spewed some bit of racist crap, would you cry about companies pulling advertising, or ABC killing the show? I haven't heard anything about jack booted thugs showing up at his door to take him off to the gulag, so this is not a freedom issue. It's an issue of what you can say and still get rich saying it. Despite the title of the show, if you say things that alienate the audience, they won't want to pay your bills for you. That's the market at work.

Bill Maher, host of "Politically Incorrect," stirred up controversy in September, 2001 following the attacks in the same month with the statement "We have been the cowards, lobbing cruise missiles 2,000 miles away. That's cowardly. Staying in the airplane when it hits the building, say what you want about it, it's not cowardly." Multiple corporations pulled advertisements from his show and ABC, his broadcasting network, condemned his statements. He apologized and was not fired.

It would be all too easy to take a stance on what Maher said, or the wave of nationalism which has washed over America in the past few years, but this is beside the point. Regardless of how his statements may be defended or condemned, there appears to be an unspoken consensus in this node (for the most part) that the Bill of Rights places restrictions on everyone.

Unfortunately, the issue is rarely so simple. The Bill of Rights originally applied to one thing only: the federal government: specifically, the legislative branch. Let us examine the language of the First Amendment:

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.

This is self-explanatory with regards to the discussion at hand. Gradually, through the process of incorporation (mostly via the Fourteenth Amendment), the Bill of Rights and other restrictions placed on the legislative branch were applied bit-by-bit to the states, but at no point were any of these ever meant to apply to private entities except when stated outright, and at no point have they applied to them. It is clear by examining the First Amendment that there is no provision for its application to private entities. Maher and all associated advertisers and broadcasters were exercising the rights they enjoy within the confines of contracts they have entered, and while contracts are subject to governmental jurisdiction, there is nothing in our legal system that suggests it is inadmissible for a contract to abridge free speech.

Maher was, of course, exercising his right to free speech in this case. This right protects him from prosecution or civil action by the state and federal government (assuming he did not violate any statutes pertaining to obscenity; the federal government's right to censor speech on the airwaves has been judicially supported previously, specifically in Pacifica Foundation v. FCC, 1978); it does not, however, protect him from violating a term of a contract he has entered into, and it is likely that within these contracts there are provisions that allow advertisers and broadcasters to simply drop Maher's show based purely on their discretion, if not a provision that allows for Maher to be dropped in cases similar to this one. When placed in the position of an executive at any of the companies here, the decision made is completely understandable, whether "censorship" or not: Maher's statements, being largely controversial and at first sight downright offensive to some parties (namely anyone who feels particularly strongly about the September 11th attacks or was personally affected by it), will cost both advertisers and broadcasters money, which is obviously against their wishes. Regardless of any inclination they have to support the proliferation of unpopular opinions, they also have jobs to keep.

The freedom to express unpopular opinions is guaranteed by our Constitution, and is essential to the elimination of so-called "tyranny by the majority," paraphrasing a recent speech by Chief Justice John Roberts (he is less menacing in person), but that freedom does not imply that anybody has to listen to them, and it definitely does not mean that they are required to broadcast them if that is within their means.

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I've attempted to be as impartial as possible in this writeup: it is meant only as an objective analysis of the legal circumstances regarding this issue, not a criticism of any particularly position.