The Right to Free Speech Can’t Save Kim Burrell

A few weeks ago, gospel singer Kim Burrell found herself in hot water with saints and sinners alike when a two-minute excerpt from one of her sermons found its way to the internet. In the clip, she says that “the homosexual spirit is a spirit of delusion and confusion,” and she makes several references to homosexuality as perverted.

Celebrities and others quickly condemned Burrell’s statements:

Then, Burrell’s professional career began to take a hit. She was scheduled to perform on The Ellen DeGeneres Show with Pharrell Williams to promote a song from the popular film Hidden Figures, but the host canceled Burrell’s invitation. Pharrell ultimately appeared on the show on his own. He and Ellen spoke specifically about Burrell and why she was uninvited, with Ellen noting that she did not want to allow Burrell to use her platform.

Then, Burrell’s radio show, Bridging the Gap on KTSU-FM, was canceled. Burrell was also uninvited from the upcoming BMI Trailblazers of Gospel Music Awards, where she had earlier been named a co-honoree of the event. Burrell has found herself on a spiraling fallout from her words.

Some have questioned whether Burrell’s punishments have gone too far. And, Burrell does have some supporters. A petition, titled “Respect Freedom of Speech and Religion of Rev. Kim Burrell,” has surfaced and as of this writing there are more than 500 signatures to the petition.  Some people have tweeted in support of Burrell, stating things like:

It seems that Burrell’s comments have been used to spark a national conversation about the right to freedom of speech and whether it should apply to statements by public figures like Burrell. Making public statements, particularly about controversial topics, can obviously have real consequences for public figures. Those raising free speech concerns, however, are mistaken if they think the right to free speech can save Kim Burrell.

People often talk about being able to say whatever they want thanks to their right to freedom of speech. But this idea is based on common misunderstandings about what the U.S. Constitution actually says.

What is allowed under the Constitution starts with the text of the First Amendment, which provides that:    

“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 language essentially allows for freedom of expression without government interference. It’s basically a restriction on how the government can limit citizens’ speech, even if that speech is racist, homophobic, or otherwise offensive.

The First Amendment does not, however, apply to nongovernment entities. So private companies – television networks, radio stations, or performing rights organizations, for example – can actually restrict speech without violating the First Amendment, because in most cases, it doesn’t apply to them (unless the restriction is illegal for other reasons).

If a public figure like Burrell has entered into a contract with a private company, they are really only tied to whatever the contract says. Oftentimes contracts include something called a “morals clause,” which outlines the scope of acceptable behavior and speech. When you read about an athlete, entertainer or other personality getting dropped from a deal, it is often related to a violation of a morals clause in the contract.

Any questions about what a public figure like Burrell can or cannot express, therefore, will usually start with the language of any contracts she has signed – not the First Amendment. The right to free speech can’t save Burrell in this case. 

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