WalMart and free speech

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(Host) Commentator Cheryl Hanna has some thoughts about a recent controversy surrounding Walmart stores and the First Amendment.

(Hanna) Vermont used to be the only state without a Walmart, and there was something so innocent about that. But now there are four stores throughout the state and Walmart’s news has become our news. And the nation’s largest retailer is in the headlines – again.

Walmart recently announced it’ll stop selling certain men’s magazines. Maxim, Stuff and publications that have racy front covers will no longer tempt male patrons at the checkout stands. Walmart made the decision after pressure from Christian groups and consumer complaints. It would rather forgo profits than offend its
customers, a spokesperson said.

This isn’t the first time Walmart has pulled something of controversy from its shelves. A few years ago it stopped carrying the Sports Illustrated Swimsuit edition because it too was just too risque. And this past December, Midge – the married and pregnant Barbie – was also discontinued after customers claimed the doll promoted teenage pregnancy.

These moves have some publishers and commentators claiming Walmart is guilty of censorship by forcing its own sense of morality on the rest of
us. Some have even accused Walmart of trampling on the free speech rights of its customers.

Now I’m going to do something I once thought unthinkable. I’m going to defend Walmart. First, by way of disclosure, I own no stock in the company and although I have shopped there a few times, I’m no fan of the place. But I’m far more concerned about its alleged unfair labor practices and environmental impact than I am about its magazine selection.

Nor do I find the banned magazines as offensive as I do a little light on content. But then again, who buys these things for the articles anyway? And while I doubt that Midge really encouraged teenage pregnancy, it was shocking that at nine months, she still had a perfect body.

But Walmart is not violating anyone’s rights. Free speech is only violated when the government somehow prohibits or restricts speech. If the state of Vermont forbade Walmart from selling a magazine, or, conversely, demanded Walmart put Maxim back on the shelves, then free speech would most certainly be at issue.

But private retailers aren’t bound by the First Amendment, they’re protected by it. That means Walmart is free to sell just about any legal item it wants, for any reason it wants. In June of 2001, Kmart stopped selling firearms and ammunition in response to customer demands. Kmart certainly didn’t violate the Second Amendment rights of wannabe gun purchasers when it did so, and this case is no different.

Unlike in other countries where the government controls the moral content of what its citizens read and buy, this is a democracy, and a free market economy, where the bottom line is this: money talks.

So if you don’t like Walmart’s decision, don’t shop there. And of course, you’re always free to disagree.

This is Cheryl Hanna.

Cheryl Hanna is a professor at Vermont Law School in South Royalton, Vermont.

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