Cor­po­ra­tions are crack­ing down on what em­ploy­ees say, even out­side work, writes Fredrik deBoer. That’s eas­ier now than ever.

The Washington Post Sunday - - OUTLOOK - Twit­ter: @fred­diede­boer

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 guar- an­tor 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-the­clock mo­ments, and all of us will be­come less free.

Fredrik deBoer is an aca­demic and writer based in Brook­lyn.

Most Amer­i­cans have no le­gal right that pre­vents them from be­ing fired for their po­lit­i­cal be­liefs.

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