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The surest way to work up a crusade in favor of some good cause is to promise people they will have a chance of maltreating someone. To be able to destroy with good conscience — this is the height of psychological luxury, the most delicious of moral treats.

ALDOUS HUXLEY

Joe Rogan has been the source of significant controversy for the last few weeks. For those of you who don’t know him, Joe has a wildly popular talk show which he licensed to Spotify in May of 2020 for a reported $100,000,000.00. Joe has a history of inviting controversial guests on his show for long-form interviews often lasting hours and is by several standard deviations the largest presence in the medium.

On January 5th, Joe had Dr. Robert Malone on his show, and in a long free-form interview, they discussed his views on the Covid 19 response. The next day it was banned from YouTube but available on other services. A massive and highly polarizing controversy developed. On 24, January a Canadian musician named Neil Young gave Spotify the ultimatum that either Rogan was de-platformed, or he wished to exclude his music catalog from their service. Spotify obliged him and several other artists of varying degrees of notoriety who followed suit.

Over the weekend of February 5th, a video compilation (which had no contextual information whatsoever) of Rogan uttering racial slurs was released and the controversy raged again with people alternatively rushing to demand his termination from Spotify and alternately affirming their conviction in his first amendment rights. To his credit, Joe immediately issued a heartfelt apology. Rogan said, “It’s a video that’s made of clips taken out of context of me of 12 years of conversations on my podcast, and it’s all smushed together, and it looks [expletive] horrible, even to me.” “I know that to most people, there’s no context where a white person is ever allowed to say that word, never mind publicly, on a podcast, and I agree with that now, I haven’t said it in years. But for a long time, when I would bring that word up – like if it would come up in conversation, instead of saying ‘the n-word,’ I would just say the word. I thought as long as it was in context, people would understand what I was doing,” he added, explaining how he was quoting other people’s use of the word. “It’s not my word to use. I’m well aware of that now, but for years I used it in that manner,” Rogan said. “I never used it to be racist, because I’m not racist.
At the time of this writing, Spotify remains committed to hosting his show.

Having said that, I am seeing something other than a straight-up first amendment infringement. It seems more like a battle royale with multiple issues. Before we dive in, let’s take a look a the first amendment:

Amendment I

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.

Focusing especially on the verbiage applicable to this issue, I think most people are looking at “prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press” and I think that is the wrong take. First, Joe sold his show to Spotify. For the sum of money that was exchanged, you would assume that freely came with a level of editorial control (exhibited by their removal, at the request of Rogan, of 113 episodes from the platform and prohibiting him from inviting certain guests on the show). Joe seemed disappointed when he announced this but stopped short of actually complaining.

Here is where it starts getting complicated. The issue of stablemates giving Spotify their ultimatums, which to Spotify’s credit, (or the credit of their cost/benefit analysis) they have thus far refused to move to an unvarnished attempt to censor the platform. I do not believe this is an actual affront to Joe’s 1A rights. These artists are private citizens who are complaining to a private corporation about their working conditions. Whether or not they have a moral imperative doesn’t matter. 1A restricts The federal government. In fact, 1A actually encourages these artists TO speak out against what they think are unfair or intolerable conditions. Whether their end-use market agrees with them or not is where this particular issue should end. My final thought on this aspect is that I sort of feel sorry for Spotify. They had no idea something like this would happen when they secured the podcast, but they are in the middle of an electrified situation.

The second area would be the public who are either end-users or people who are interested in the topic and litigating it on social media. Rogan has his share of supporters. Mostly conservatives who love to fling themselves at any opportunity to bellow their affections for the freedom of speech. #istandwithjoerogan is actually trending on Twitter, but there are an equal amount of people who want to see him canceled, especially after the gotcha video was released. I don’t see how a public effort to have his show cancelled is an affront to Joe’s 1A. It’s horrible and reprehensible, but nothing was legislated and no government officials infringed on his right to speak.

Having said that. The Biden administration signaled its intention to become involved, and that’s where it could get interesting.
The press secretary Jen Psaki stated: “Our hope is that all major tech platforms — and all major news sources for that matter — be responsible and be vigilant to ensure the American people have access to accurate information on something as significant as COVID-19,” Psaki said of Spotify’s new content warnings. “That certainly includes Spotify,” stated, and added, “So this disclaimer, it’s a positive step, but we want every platform to continue doing more to call out misinformation while also uplifting accurate information.” This is a “so far so good” opinion that exerts a gentle but clear influence on tech platforms, but stops short of censoring them. If they go forward with any form of expansion on this, they could likely be in jeopardy of a first amendment infringement of some type.

I stop short of giving Rogan my sympathy. He has courted controversy with millions of people for an incredibly long time. Something like this was bound to happen. I do not know if his relationship with Spotify will survive this. At some point, the board of directors will probably get tired of the repetitional damage and cut bait. He will move to another platform that, if I had to guess, allows him to reclaim his autonomy. If he is resilient he can live this down. If he isn’t, he has his wealth to fall back on, a casualty of the intellectual civil war tearing at the country. Joe Strummer once said, “You have the right to free speech… …as long as… …you’re not dumb enough to actually try it”. Nowhere is this more true.

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