Jason Aldean Controversy: Free Speech and Censorship Collide

Jason Aldean Controversy

The music video for Jason Aldean’s song “Try That in a Small Town” stirred controversy in July 2023 with the First Amendment at the center of a debate about censorship and free speech.

As the controversy grew, the country music channel CMT announced it would no longer show the music video.

Supporters claimed Aldean was being canceled, and his First Amendment rights were violated. Detractors insinuated that the song’s lyrics don’t merit First Amendment protection, and some have even petitioned the government to step in to censor Aldean.

A First Amendment analysis of the Jason Aldean controversy

Let’s look at the song and some of these claims through a First Amendment lens using a “traffic signal” framework:

green  Green light: These words or actions are protected by the First Amendment.
yellow  Yellow light: Caution! The First Amendment might not apply.
red  Red light: No First Amendment protection.

Are Aldean’s song and music video free speech?

The song’s lyrics compare responses to crime in big cities and small towns. The music video uses footage of carjackings, armed robbery and protests. The footage is interspersed with clips of Aldean singing in front of a Tennessee courthouse where an 18-year-old Black man named Henry Choate was lynched in 1927 and a race riot occurred in 1946.

The song’s lyrics, which some say imply violence, plus the image of Aldean singing at a setting of racial violence have some arguing that the song is not protected by the First Amendment.

green Green light: Music is protected as free speech. Only 54% of Americans in Freedom Forum’s 2023 “The First Amendment: Where America Stands” survey knew this, but 88% agreed music should be protected from government censorship.

Many have claimed that the song is hateful. But, as 6 in 10 survey respondents knew and agreed, hate speech is protected by the First Amendment, unless some other exception applies. None apply here. The lyrics and video lack the necessary immediacy to be “incitement to imminent lawless violence,” which is not protected by the First Amendment. They are not face-to-face and so cannot be “fighting words.” And they do not single out any individual as required for a true threat to exist.

Are the actions in the song free speech protected by the First Amendment?

In the song, Aldean refers to actions that would generate a response in a small town, including “cuss out a cop, spit in his face, stomp on the flag and light it up.”

"Cuss out a cop"

yellow Yellow light: The First Amendment means we can stand up to authority and aren’t required to choose our words carefully when we do so. But some of the clips in the music video show protesters shouting right in the faces of police officers, which could be “fighting words,” a category of speech not protected by the First Amendment. These words are intended not to convey a message but rather to provoke a violent response. And this could also lead to obstruction of justice charges if you impeded an officer’s job.

"Spit in his face"

red Red light: Any physical contact with a police officer is no longer expression. This is likely criminal assault.

"Stomp on the flag and light it up"

green Green light: Flag desecration, including stepping on the flag and burning it, is protected by the First Amendment. The Supreme Court has said flag burning is symbolic speech and in many cases is protected as free speech.

Can TV and radio censor the song or venues cancel Aldean shows?

CMT stopped airing the “Try That in a Small Town” video. Some radio stations aren’t playing the song. People are calling for boycotts of Aldean’s concerts and asking venues to cancel his shows.

green Green light: CMT, radio stations and concert venues are all private businesses. The First Amendment doesn’t apply here – something that three-quarters of Americans don’t know. Private businesses can set their own rules about what messages they support and promote. The First Amendment only protects us against government actions that infringe on our rights to religion, speech, press, assembly and petition.

Can people challenge Aldean's controversial statements?

The Jason Aldean controversy largely began after the music video was released, and people added context to Aldean’s claims that “there isn’t a single video clip that isn’t real news footage.”

Major media outlets and citizen journalists added historical context regarding the courthouse and the video footage, some from protests outside the U.S., which provide context to Aldean’s claims.

green Green light: The work of professional and citizen journalists is freedom of the press protected by the First Amendment. Statements about a celebrity like Aldean get very strong protection under the First Amendment. Americans have the right to hold public officials and public figures accountable.

Is criticizing Aldean – or “canceling” him – free speech?

Aldean’s defense of the song has thousands of reactions. Gun control activists and other musicians have called him out. Conservative commentators and a former president of the United States have defended him.

Aldean responded to criticism and accusations of being anti-Black Lives Matter, pro-lynching and insensitive to the impact of gun violence. He described the song as one that “refers to the feeling of a community that I had growing up, where we took care of our neighbors, regardless of differences of background or belief.”

green Green light: Aldean says that he is a victim of “cancel culture.” That’s a hard term to define. Sometimes what is deemed “cancel culture” is just people using their own free speech. Often, exercising your freedom of speech has consequences. People contacting government officials are exercising their freedom of petition. And, of course, sometimes their criticism backfires, like when the song in question rises to no. 2 on the Billboard Hot 100 charts despite – or more likely because of – the controversy.

Can government officials use their power to punish Aldean?

Politicians have also weighed in. For instance, Justin Jones, who was expelled from and then reinstated to the Tennessee House of Representatives for leading a protest on the House floor, described the song as a “lynching anthem” and said “we have an obligation to condemn Jason Aldean’s heinous song calling for racist violence.”

yellowred Yellow/red light: Government officials like Jones have First Amendment rights, too, especially when speaking outside their official duties. They have every right to express their opinions.

But they cross a line when they use their position and power to punish. It would violate the First Amendment to condemn Aldean in an official resolution that carried some penalty. And if any lawmakers tried to pressure stations or venues to stop playing or hosting Aldean, this would infringe his First Amendment rights by punishing him based on the content of his song.

The Jason Aldean controversy unpacked

The Jason Aldean controversy isn’t the first debate about music, censorship and free speech. Such controversies cut across political divides and span musical genres. History is full of examples of controversial rock, punk, heavy metal and, particularly in recent years, rap and hip hop songs.

This is why it is so important that we all protect the free expression rights not only of those who write and perform songs but also of those who criticize and defend those artists.

Kevin Goldberg is First Amendment specialist for the Freedom Forum. He can be reached at [email protected].

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