In a free society, contracts do a great deal of heavy lifting. You do this and I’ll do that, always to our mutual benefit. When a dispute arises, an arbiter can check the words to see who is in breach. If some party has failed to comply with the terms, he or she pays a financial penalty. That’s fine as far as it goes. Everything is voluntary.
But there are limits to what contracts can do. For example, even in a financial pinch, you cannot sell yourself into slavery. That is to say, you cannot voluntarily surrender your human volition under all conditions and with no limit in time. We didn’t need the 13th Amendment to make the point but still it is there: no involuntary servitude except as punishment for crime.
The reason is intuitive but also traces to our tradition. Thomas Jefferson said our rights are inalienable. That means that they cannot be surrendered even by choice of both parties. At any time, a person must be free to exercise those rights, though doing so might require leaving contractual commitments.
The limits of contracts have been tested throughout American history. In old Hollywood, for example, the studios owned the theaters and also did their best to own the talent too. When an actress had a hit, she signed a high-dollar deal and agreed to several more films. But it often happened that the career would take off and the actress would want out. They had almost no success. As a result, a vast number of films were made with talent under duress.
After the Second World War, the Supreme Court broke up the old studio system under antitrust law, which reduced the market power of the studios and also their ability to retain talent for years hence and effectively force talent to make films they didn’t like. By the 1950s, the system was largely dead and the talent would choose films based on a one-off deal. Everyone seems happy with the results.
Two industries where this did not apply were sports, which is being painfully resolved now, and also television. Television even today has some of the most strict non-competes of any industry. They are set for years down the line. When a conflict arises, the studio uses every bit of power to enforce their prohibitions. Some major sports also enjoy various antitrust exemptions.
This has come to a head in the case of Tucker Carlson. The most popular news show on television by far, Fox one day decided just to turn off his show, leaving him completely in the lurch. They didn’t fire him, however, and so insisted that he keep to the contract even without his show. They effectively shut him up. The contract would apply until December 2024, leaving America’s most influential and popular commentator completely silent throughout the whole of the election season.
Wait, does that mean that he cannot so much as post a Tweet? Surely not. But if he can post a tweet, can he post a video talk? If he can post a video monologue on Twitter, how long can it be? And if it can be 10-30 minutes, at what point does this conflict with the restrictions of the contract?
This is what is being tested now. Carlson’s attorneys say that by canceling his show, Fox is in breach of the contract.
Think of it this way. Tucker agreed to provide exclusive content to Fox. Fox agreed to compensate Tucker; this is called consideration. But the consideration to be paid to Tucker was not only his salary; it was his ability to maintain his public presence via his Fox News show. Arguably, Fox is now withholding a major part of the consideration it owes Carlson, and is still insisting Carlson abide by the exclusivity provision.
You cannot insist that the talent comply with one part of the deal if the employer is refusing to comply with the other part of the deal. After all, by signing the contract, he did not give up his rights to speak under any and all conditions. He only agreed not to appear on other venues so long as his show was aired on TV.
Fox disputes this. They want him silenced for the next 18 months. And they expect the most popular, engaging, and prescient voice out there today just to spend the next year and a half fly fishing and otherwise not expressing his views. This strikes me as completely untenable. It is also gravely unpopular with the public. It seems tremendously self-defeating for the network, which has already taken a big hit from losing its most popular show.
All of which raises the question: why did Fox do this? We still don’t know for sure. The scuttlebutt is that the canning of the show was part of a $787.5 million settlement with voting machine company Dominion. Tucker’s show was thrown into the deal to get it signed.
Maybe. But these days, hardly anything is as it seems. Tucker’s last shows honed in on the great third rail of American politics today: the power of Big Pharma. (By the way, the phrase “third rail” is from the electrified third rail in a subway system: electrified and therefore untouchable.)
In the last show before cancellation, Tucker put Robert F. Kennedy, Jr. on the air to talk about the corruption of medicine and the influence of pharma over public life. This is a topic that once you start digging leads to rabbit holes we never knew existed. It turns out that pharma is a huge advertiser on all networks and also a major source of campaign funds. For all the world, it looks often as if pharma has bought many governments around the world and major parts of the U.S. political machine too.
Was this a factor in why Fox fired him? We can only speculate. But I will say this: there are massive scandals associated with the pandemic response and the power of pharma. They created shots for the whole of the public when only a small cohort really needed them, and they turned out to be not nearly as safe and effective as advertised. Making matters even more egregious, millions were faced with mandates to get the shot or get fired. Again, millions were professionally displaced as a result of these mandates.
The scandals associated with these products and the policies that followed are enough to discredit the whole industry in the public eye for a generation. You can easily see why pharma would not want this to happen. As a result, they are working closely with every information broadcaster to bury all discussion of these volatile topics. Certainly Fox would have rather Tucker not spoken of it at all.
We don’t know the truth behind the reason for his show being canceled but we do know it has been devastating for the network. The “cease and desist” note from Fox to Tucker has further angered viewers, and caused a once-trusted network to enter quickly into the category of the “mainstream media” which routinely dishes out government and industry propaganda rather than real news.
Here is one truth we know for sure: Tucker Carlson has free speech rights. That cannot be taken away especially when the non-compete contract was not kept by his employer. But you know how these disputes can go. They can last many years and in the meantime, no one is entirely clear when they are allowed to speak.
This is the hope of Fox. They want to shut him up. Fox is aligned with the whole of all social media: censorious and deferential to regime priorities. The walls just keep closing in.
Carlson deserves every bit of respect and credit for doing three videos on Twitter totaling more than 200 million views. He is walking the walk: exercising his rights even under grave legal duress.
In this, Tucker Carlson is an example to us all.
