Free Speech Standards at Work are…Inconsistent

Whether or not you can speak up depends on whether you’re the one in power.

The idea of free, unfettered speech is under the microscope on a number of fronts lately. In addition to The Letter, which seems to confuse “freedom of speech” with “freedom of access to any platform free of consequences,” there’s also new instances of concern that speaking your mind politically or reacting negatively to a political or social story could be bad for your career.

Of course that’s only if you’re not the one in charge of a company or industry.

In one corner you have the president of Goya Foods, who has come under fire for his praising of President Trump, with some calling for a boycott of the brand’s products. Conservatives, of course, see such a boycott or other repercussions as part of an organized and maybe even illegal effort by The Left to tear down Trump and other Republicans. Anyone should be able to say what they like, and any attempts to stifle that is a catastrophic travesty the likes of which the Republic has ne’ertofore seen.

In the other corner, you have stories like this recent one, about an ESPN journalist suspended over using the F-word in a private email to a U.S. Senator regarding the NBA’s response to democracy protests in Hong Kong, itself an issue rife with concerns over free speech and corporate regulation.

And in a third corner, you have the president himself, who would like to not only actively suppress independent journalism but also publicly criticizes countless companies – most recently NASCAR – any time they take any stance counter to the one he prefers. The consequences of Trump tweeting negatively about a company can have disastrous results.

So, not to be too simplistic about the issue, which is it? Should people face non-governmental consequences for their speech or should such speech come with impunity? It seems the answer depends on which side you’re on politically and, importantly, if you’re a Lord or a Serf in your particular capitalism fiefdom.

If you’re a CEO or other executive, you apparently can say what you want. Throw as many fundraisers as you like for politicians that espouse racism or sexism and who want to continue paying homage to the Confederacy. Anyone who organizes a boycott is trying, it seems, to destroy a perfectly good company because someone in charge voices an opinion.

Never mind, of course, that these free market advocates don’t recognize the free market when it’s actually in action. People deciding, as a group or individually, to support or reject a brand because of their stated stance on a social or political issue is the very definition of the market’s freedom. In fact, it’s the same market freedom that had Republican’s pressuring country radio stations to take Dixie Chicks (now just The Chicks) records off the radio. More recently, there was a call for a boycott of Nike after it signed Colin Kaepernick to an endorsement contract.

If you’re a line worker, though, the rules seem to be different. Very different. The First Amendment doesn’t apply to most nongovernmental employees, and jobs are “at-will” where workers can be fired for any non-protected reason. People can be fired because of what they Tweet, what protests they take part in or anything else and the company can officially say they were let go because of some other work-related reason, even if it’s not accurate.

To be clear, I don’t think people should lose their jobs for political speech or beliefs. Even racists need jobs. But if we’re establishing a system where companies can claim it’s within their moral or religious rights to withhold birth control coverage from employees, maybe it should also be allowed for companies to fire someone because they marched with a bunch of Nazis in Charlottesville.

At the moment, the balance of power seems skewed. You can’t claim people are free to vote with their wallets and with their feet and their choices in one instance and then call foul when they do the same thing in a way you disagree with. And you can’t claim a company is within its rights to fire someone for their beliefs but then complain when there are calls for similar consequences against an executive. Or, at least, you shouldn’t, unless of course your true ideology isn’t free speech but the protection of the powerful and the maintaining of a status quo where individuals have less voice in society than those with access to the levels of power.

The Establishment Would Like to Finally Win Now

We’re in the Endgame now.

If you’re someone who pays even a little attention to the world of media and media criticism, you’ve probably already read The Letter.

Titled “A Letter On Justice and Debate” and published in Harper’s, the letter is signed by scores of well-known creatives and writers, and essentially argues the world has become unfair. It’s too easy for an angry mob of politically correct individuals, the letter states, to “cancel” well-meaning writers, editors and others simply because they espouse a belief that runs contrary to current conventional wisdom.

Many others have pointed out the various problems with the points put forward in the letter, including that it is filled with straw man arguments, poorly-constructed logic and, most importantly, a desire by the signatories to no longer be subject to any sort of accountability by the public. It holds free speech as the ultimate positive, and sees any criticism as an attempt to stifle that, unaware that seeking to be free from critique or consequence is itself a stifling of others’ speech.

The Letter did not appear out of the blue. It comes after a number of editors and writers have resigned or been let go for allowing editorials that have implicitly or explicitly sanctioned or encouraged violent crackdowns on peaceful protestors, excused or approved of racist, anti-Semetic or anti-LGBTQ policies and ideologies and more, all of which have been roundly and rightly criticized. The targets of these critiques have mostly been employed at large, national publications or are internationally-famous brand names.

Even discounting these recent episodes, the push to keep legacy media free from the voices of the people is one that dates back at least 20 years and highlights one of the key issues dividing “mainstream” media and the “new” media that emerged at the beginning of the millennium.

Big newspapers and magazines were slow in the early days to adopt new online features such as comments that were native to and pervasive on blogs. When they did it was something they struggled with, unsure of who was responsible for moderation (the writer or a web manager?), what those moderation policies should be and how such a feature fit into their overall brand identity. People could always write letters to the editor, but those were filtered before publication where comments were often public immediately.

Some found sustainable ways to allow for public commenting in-house but many either shut down the comments feature completely, restricted usage to people who registered or, later on, outsourced it to Facebook. But the issue remained that being exposed to the public’s feedback was something those in charge were uncomfortable with and didn’t know how to react to.

That problem has only become more pervasive as on-domain comments gave way to off-site social media, a shift that decentralized the conversation and therefore control. Now people could say whatever they wanted on their own platforms and there was little the traditional gatekeepers could do about it.

Being subject to this kind of unfiltered response system is new and, quite frankly, disconcerting to many of these folks. They see themselves in the business of opinion-making and hold the unfortunate belief that any opinion is worth discussing because without it they would be unable to fill their column inches. “We’re just asking questions” is a common response when someone receives push back, a tactic used to free themselves from any responsibility for their actions.

Not all opinions are worth discussing, and saying that bringing fringe or dangerous beliefs to the forefront in the interest of public awareness belies the real damage that action can do to vulnerable populations.

Most importantly, being subject to feedback – even negative feedback – is not the same as being denied First Amendment rights. The same is true when someone loses their vaunted position as a professional editorialist at a major newspaper. Their speech is not being denied, they are simply being told their opinions have been found to be objectionable and are no longer welcome at Publication X. They are still free to found another outlet or create their own if they so choose.

There is little room for such nuance or reality in this conversation, though. Those who have made careers of sharing their opinions frequently command salaries well above the journalists and reporters who have been laid off in cost-cutting measures taken by private equity or other profit-minded owners, opinions that are tolerated because they bring in more attention and traffic than hard news, even with those opinions are counter to the public good. They have been free from any sort of repercussions for those opinions for so long that any move in that direction immediately feels like oppression.

It’s a journey we’ve been on for 20 years now. It started when online comments were too hard to manage. Now the tactic has shifted from “well remove comments from the site to” a struggle against “cancel culture” that benefits in many ways from being so hard to define it allows them to point to almost anything as an example of the problems they face.

Meanwhile important or relevant voices are actually silenced because they aren’t allowed to report on an issue they might be affected by. Or workers are punished by their employers for posting opinions on social media that run counter to that company’s interests. Or freelancers are rejected because they once dared to criticize the publication they are pitching.

Whatever the case, this feels like a move meant to finally bring the struggle between gatekeepers and gatebreakers to a conclusion. The new private equity and hedge fund owners of many media companies see this as a risk to their investment and will continue seeking ways to squash those risks. Free speech isn’t a goal but a threat.