Daily Times

When Google fired James Damore this past week for circulating a bizarre and offensive attack on its diversity practices, free speech advocates rushed to his defense, accusing the company of curtailing his rights. Activists have already planned a march on Google, to protest the firm’s “anti-free speech monopoly.” The trouble was that he’d written his memo and sent it to colleagues, imperiling his ability to have a healthy working relationship with his peers. Surely he knew, when he signed his employment contract, that he’d have to abide by the company’s code of conduct. It is Google’s prerogative to decide what is right and wrong to say at the office.

But corporations aren’t just enforcing speech codes at the office. Increasingly, they are cracking down on their workers’ expression outside of it. In 2009, a Philadelphia Eagles stadium worker was fired for criticizing the team’s personnel moves in a Facebook post. That same year, Georgia public school teacher Ashley Payne was forced to resign, she says, for posting pictures of herself drinking beer and wine while on vacation. An Ohio woman, Patricia Kunkle, sued the military contractor that had fired her in 2012, alleging that the reason was her public support of President Barack Obama. (She eventually settled the case.) In late 2013, public relations rep Justine Sacco was famously let go for tweeting an off-color joke about AIDS while traveling to Africa. In 2014, the chief executive of software company Mozilla, Brendan Eich, was forced out, resigning amid a public backlash against his stance opposing same-sex marriage.

This trend even extends to academia, where speech is supposedly sacrosanct: Yale University dean June Chu resigned this summer under intense pressure after her offensive reviews on Yelp were made known to the Yale community. And Lisa Durden, an adjunct professor at Essex County College in New Jersey, was given the boot after an incendiary conversation about race with Fox News’s Tucker Carlson.

Most of these people said something that I find, to varying degrees, wrong or unhelpful. Some of it was outright offensive. But none of it deserves firing, because none of it happened in the workplace or had anything to do with work. Rather, each of these people was let go because of statements or gestures they made outside of their working duties. In doing so, they demonstrate the ways that private employers can constitute a grave threat to our free speech rights – and expose a conflict between genuine freedom and capitalism.

There is a reason that, rather than letting legal codes alone protect expression, liberal societies rely on a robust norm of free speech. The basic processes of democracy require that we all feel free to disagree with one another in the public sphere; without such a norm, it’s impossible to deliberate as democracy requires. To abandon that norm is to give up the means by which people in democracies make decisions. When that norm has been abandoned, such as in the McCarthy era, we have considered it an injustice, and for good reason. The American Civil Liberties Union, lately a proud public challenger of President Trump and his travel bans, puts the point succinctly: “Censorship can be carried out by the government as well as private pressure groups.” Yet thinkers on the left and the right have failed, in many cases, to grapple with this.

Right-wing theorists have always insisted that free-market economics is the best guarantor of individual liberty. Friedrich Hayek, the economist and philosopher who did so much to create modern economic conservatism, insisted that only societies with free markets could ensure free people. “We must face the fact that the preservation of individual freedom is incompatible with a full satisfaction of our views of distributive justice,” he wrote, arguing against social programs that protect the poor and unlucky, programs that he insisted throughout his long career would lead inevitably toward authoritarianism. The libertarian movement embraces Hayek’s view, insisting that personal freedom must include the freedom to act in a market economy unencumbered by government regulation.

In contrast, the left has argued that the fickle turns of the market inevitably erode freedom. Karl Marx and his followers famously said that only through radical egalitarianism in material and social terms could the Enlightenment ideal of personal freedom be fully realized. Today’s left-leaning thinkers have echoed this sentiment, pointing to the highly regimented conditions of workers on factory floors and in white-collar offices as proof that capitalist enterprise curtails freedom rather than protects it. The political science professor Corey Robin, in particular, has made a career out of demonstrating that the tyrannies that most consistently afflict ordinary Americans are workplace tyrannies, part of what he calls the “private life of power.” Progressives who are pleased when businesses discipline workers’ illiberal speech have lost this essential thread of leftism, arguing that if the government isn’t the one enforcing speech codes, then there are no threats to free speech. This is clearly wrong.

Why have so many companies turned into petty dictators when it comes to their employees’ speech, political and otherwise? Progressives enamored of speech codes might like to imagine that corporations are motivated by genuine concern for social equality, but this gives them far too much credit. The reality is that in the Internet era, when outrage goes viral at incredible speed, companies have a pressing need to get out in front of potential controversies as swiftly as possible. Quick termination often works quite well to stamp out such fires until the public’s attention shifts. Meanwhile, though the official unemployment rate has declined for years, flatlined wages and a steadily falling labor force participation rate suggest a weaker job market than the unemployment figures alone would indicate. Under such conditions, employers probably think they have little to lose in cracking down on workers’ speech, since there are probably eager replacements waiting to fill the spots of those who object.

Most Americans have no legal right that prevents them from being fired for their political beliefs. Public workers enjoy some protection, and some states such as New York and California afford private employees certain leeway to speak politically outside of work, free from reprisals by their employers. But the vast majority of American workers have no such defenses and can be fired for their political expression at the whim of their bosses. As Alina Tugend wrote in a 2015 New York Times essay on these issues, “If you’re a nonunion private employee, your boss has great latitude to control your political actions.”

This condition is not new. What protected employees in the past was, first, a dividing line between work life and private life that has been blurred by digital technology. And second, that aforementioned norm of free speech, a societal expectation that workers were entitled to say what they wanted to say away from the workplace. Now, that norm is being eroded, from both the left and the right.

Tools of surveillance, whether public or private, coercive or voluntary, have never been more powerful or sophisticated, and while the reactions of private employers to employees’ speech vary, it doesn’t take many incidents like those listed above to create a chilling effect. Every engine of online expression is also a tool with which our bosses might investigate our lives and our opinions. They will also therefore be key instruments of employer coercion going forward. As businesses gain new ways of observing the private lives of employees, they will become more adept at policing those off-the-clock moments, and all of us will become less free.

Published in Daily Times, August 13^th 2017.