Monthly Archives: August 2017

By Fredrik deBoer By Fredrik deBoer August 11 at 6:00 AM

Fredrik deBoer is an academic and writer based in Brooklyn.

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 firms anti-free speech monopoly. The trouble was that hed 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 hed have to abide by the companys code of conduct. It is Googles prerogative to decide what is right and wrong to say at the office.

But corporations arent 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 teams 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 Newss 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, its 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 Hayeks 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. Todays 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 isnt 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 publics 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 youre 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 doesnt 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.

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Corporations are cracking down on free speech inside the office and out - Washington Post

File Southern Methodist Universitys Dallas Hall, where the 9/11 memorial traditionally appears. (Photo: Hillsman S. Jackson, File)

Is a 9/11 memorial placed prominently on campus triggering and harmful, or an appropriate and respectful remembrance?

Thats been hotly debated at Southern Methodist University this summer. The university just reversed its decision to relegate a traditional 9/11 memorial and all other student displays to an out-of-the-way spot on campus.

According to Campus Reform, earlier this summer, the campus organization SMU Young Americans For Freedom filed their annual request for the public display of their 9/11 memorial, a part of the national 9/11 Never Forget Project.

In response, SMU officials requested the display appear not, as usual, on Dallas Hall Lawn, but instead at a park the university noted is larger but students argued is located in a less inconspicuous spot.

Critics accused the university of muting free speech.

According the Washington Post, the universitys new policy on student displays stated that, SMU respects the right of all members of the community to avoid messages that are triggering, harmful, or harassing. That wording has now been removed from the SMU website.

Some outlets seized on the situation with critical headlines like 9/11 memorial flags may be too much for some students.

It was disappointing to us when we first discovered the new policy because of SMUs decent track record in protecting free speech, said Grant Wolf, a senior at SMU and president of the SMU Young Americans for Freedom.

According the SMU student newspaper, the Daily Campus, These annual displays have been met with little resistance until several years ago, when a number of students spoke out against Mustangs for Lifes Memorial of Innocents cross display. In that incident, a campus pro-life group displayed more than 2,000 crosses also on the Dallas Hall Lawn, incidentally to memorialize the abortions performed daily in the U.S., sparking vandalism, threats and intense debate.

SMU Young Americans For Freedom published an open letter to the university president about the 9/11 memorial, signed by leaders of clubs from across the political spectrum.

The next day, SMU officials came out with a statement that reversed the sensitive language of the new policy but did not reverse its intentions. Meant to ease the chaos that ensued over freedom of speech, the letter walked the new policy back: That language regarding messages that are triggering or harmful was added earlier in July and had not gone through the appropriate approval process.

A week later, the university president came out with another letter that changes the policy and allows the organization to keep the original display.

I thank the students from across campus who came together in the spirit of mutual respect and civil discourse to achieve this outcome, SMU President R. Gerald Turner said in the statement.

We were very pleased, as a result of our discussions, that they agreed about the importance of free speech and understood our concerns, that they agreed to reinstate free expression on Dallas Hall Lawn, Wolf said. Our organization is on the front lines nationally trying to stand for free speech, so we saw this was an important opportunity for freedom of speech for all students.

Kalina Newman is a Boston University student and a USA TODAY digital producer.

Originally posted here:
SMU reverses decision to move 9/11 memorial after free speech controversy - USA TODAY

At colleges and universities across the country, the right to speak freely faces brutal attacks on a regular basis. But the tide is turning in favor of free expression. Last week, North Carolina enacted bipartisan legislation to protect speech on campus by overwhelming margins.

North Carolina isnt alone. Arizona passed campus free speech protections last year, and California, Michigan and Wisconsin are considering similar legislation. Its not surprising. The furor over free speech on campus has affected people across the political spectrumand thats creating some unlikely bedfellows.

By now, the saga of Evergreen State College in Olympia, Washington, is well-known. Students at the avowed progressive school shouted down Bret Weinstein, the self-professed deeply progressive faculty member, after he opposed the idea of asking all white members of the campus community to leave school for a day. As racially charged protests overran the campus, images of the unrest spread across social media and even national television. In one video, protesters trapped the school president and would not allow him to use the bathroom without an escort. Weinstein told the Wall Street Journal that campus officials could not guarantee his safety.

Colleges must be places that allow for the free exchange of ideas, but schools are failing in this role. A string of speaker disinvitations has been punctuated by violent demonstrations that blocked lecturers earlier this year at Middlebury College in Vermontand Claremont McKenna College in California. At Middlebury, the response was milquetoast: some students had a letter placed in their permanent record; no one was suspended. At Claremont, students were suspendedsome for as much as one yearor placed on probation. These two instances show how an ad hoc approach to discipline is inadequate to deal with free speech cases.

But on campus, free speech is making a comeback.

Earlier this year, Stanley Kurtz of the Ethics and Public Policy Center and researchers at the Goldwater Institute developed a model proposal to help state lawmakers protect free expression at universitiesfor both speakers and protestersand ensure that all voices can be safely heard.It calls for universities to nullify restrictive speech codes and eliminate the notoriously small and isolated free speech zones that limit where students can debate and distribute literature outside of class.

Some university leaders agree that change is overdue. In March, Northern Arizona University President Rita Cheng challenged safe spaces, saying universities need to provide [students] with the opportunity for discourse and debate. In response, students protested and called for her resignation.

Protests like these imply that certain speech should be freer than others. In reaction to the proposal, the University of California-San Diego student newspaper argued that protesters are just exercising their right to express themselves. We couldnt agree moreuntil those protesters block other individuals ability to do the same. At that point, it becomes an oppressive response inimical to free speech.

Ultimately, for campus free speech reforms to succeed, individuals on campus must be held accountable for their actions. Universities should suspend or expel those who break the law and forcibly block others ability to be heard. The Goldwater Institute's model makes sure that those accused of violating others free speech rights receive due process protections so that when students face suspension or expulsion, they can be represented by counsel and recover legal fees if a school punishes them unfairly.

These two provisionsdisciplinary sanctions and due process protectionsare important to adopt in tandem. Righteous indignation over disruptive protests has not kept innocent members of the university community safe. Off campus, physical and verbal abuse is subject to prosecution. The same rules should apply on campus. Likewise, protesters accused of violence should be able to present their side of the story and have legal protection.

Colleges should be places where students learn to handle difficult topics in civil debates. After all, everyone will face challenging ideas and conflict once they graduate and move into the next stage of their lives. A universitys best gift to its graduates will be to prepare them for this.

Jonathan Butcher is a senior policy analyst at the Heritage Foundation and Jim Manley is a senior attorney at the Goldwater Institute.

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A Campus Free Speech Comeback - RealClearEducation

Sen. Joe DonnellyJoe DonnellyGOP rep jumps into Indiana Senate race OPINION | Wendy Davis: Collins and Murkowski inspire the next generation of women in politics Anti-abortion Democrats fading from the scene MORE (D-Ind.)recently introducedthe Restoring Integrity to Americas Elections Act. Despite the innocuous name, this is yet another attempt to weaponize government against free speech, free association and political dissent.

The legislation wouldoverhaulthe Federal Election Commission (FEC) by lowering the number of FEC commissioners from six to five, supposedly putting an end to gridlock. The bill would also reduce partisanship by limiting commissioners to serving one term and granting the president power to nominate an FEC chair to serve for 10 years. This chair would have the authority to act independently of other commissioners, centralizing power in a single unelected political appointee.

Donnellys legislation will openly weaponize the FEC, as it allows one side of the aisle to impose its will when there is legitimate disagreement over complex legal matters. The House version of the bill sponsored by Rep. Jim Renacci (R-Ohio) already hasmore than 10 bipartisan co-sponsors. Perhaps Renaccisnow-floundering campaignfor Ohio governor drove him to support such an un-conservative idea to pander to liberal voters.

For decades, the independent, six-member FEC has remained bipartisan by design, precisely because it has the power to restrict speech about politicsthe very heart of our freedoms of speech and association.

Under the proposed Donnelly-Renacci legislation, Democrats and Republicans would receive two commissioners each, allowing the president to pick the tiebreaker for the next decade. Consolidating partisan control for 10 years at a time does not sound like an improvement.

Democratic Commissioner Ellen Weintraub, a proponent of all-powerful FEC Chair, exemplifies why it cannot work: These roles are innately partisan. Weintraub ignores Democrat malfeasance while actively lobbying her agency colleagues to probe the reported attempts of Russia to influence the 2016 U.S. presidential election. In asensationalist June memo, Weintraub claimed Russias alleged activities in our 2016 presidential election may represent an unprecedented threat to the very foundations of our American political community. Yet she disregards such concerns when a Democrat is involved.

The same commissioner has sought toregulate the internet,fine Fox News Channelfor includingmorecandidates in a 2015 Republican primary debate, and routinelyassails her fellow commissioners.

Weintraub complains about partisan dysfunction at the FEC,lamentingdivisions on ideological grounds. But she fails to understand her perceived dysfunctionher colleagues not agreeing with heris the natural outcome of a checks-and-balances system. There are reasonable differences in interpretation of complex election law and its application to particular facts. Dysfunction proves the FEC is not controlled by a single side of the aisle. Giving Weintraubor a Republican equivalentthe power to persecute speakers and criminalize speech is just plain crazy.

Recent attempts to reform the FEC only prolong Americas unfortunately long history of misplaced anti-speech activism. Surreptitiously-named liberal groups like the Center for Public Integrityroutinely lamentmoney in politics. They fearmonger with threatening terminology, from unlimited cash donors to shell game and aggressive trafficking. Left-wing activists like these revert to visceral depictions of Sheldon Adelson and the Koch brothers as an us vs. them ploynot unlike the failed Occupy Wall Street movement.

Any attack on free speech is ultimately an attack on every Americans constitutional right to free expression, no matter how much money is involved. Big money in politics only exposes us to more ideas, while we, the citizens, retain the right to vote in secret at the ballot box. The dissemination of more ideas translates to more information, leaving us with more power to make informed choices about candidates or political issuesour own decision.

Only those who believe Americans are too stupid to make their own decisions think a few more TV ads is a bad idea. The American people should reject the Donnelly-Renacci mistake.

DanBackeris founding attorney of political.law, a campaign finance and political law firm in Alexandria, Virginia. He has served as counsel to more than 100 campaigns, candidates, PACs, and political organizations.

The views expressed by this author are their own and are not the views of The Hill.

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FEC 'reform' a smokescreen to weaponize government against free speech - The Hill (blog)

An emerging debate about whether elected officials violate peoples free speech rights by blocking them on social media is spreading across the U.S. as groups sue or warn politicians to stop the practice.

The American Civil Liberties Union this week sued Maine Gov. Paul LePage and sent warning letters to Utahs congressional delegation. It followed recent lawsuits against the governors of Maryland and Kentucky and President Donald Trump.

Trumps frequent and often unorthodox use of Twitter and allegations he blocks people with dissenting views has raised questions about what elected officials can and cannot do on their official social media pages.

Politicians at all levels increasingly embrace social media to discuss government business, sometimes at the expense of traditional town halls or in-person meetings.

People turn to social media because they see their elected officials as being available there and theyre hungry for opportunities to express their opinions and share feedback, said Anna Thomas, spokeswoman for the ACLU of Utah. That includes people who disagree with public officials.

Most of the officials targeted so far all Republicans say they are not violating free speech but policing social media pages to get rid of people who post hateful, violent, obscene or abusive messages.

A spokeswoman for Maryland Gov. Larry Hogan called the Aug. 1 lawsuit against him frivolous and said his office has a clear policy and will remove all hateful and violent content and coordinated spam attacks.

The ACLU accused Kentucky Gov. Matt Bevin of blocking more than 600 people on Facebook and Twitter. His office said he blocks people who post obscene and abusive language or images, or repeated off-topic comments and spam.

Spokesmen for Utah Sen. Orrin Hatch and Rep. Mia Love, who were singled out by the ACLU, said people are rarely blocked and only after they have violated rules posted on their Facebook pages to prevent profanity, vulgarity, personal insults or obscene comments.

We are under no obligation to allow Senator Hatchs Facebook page to be used as a platform for offensive content or misinformation, spokesman Matt Whitlock said.

Katie Fallow, senior staff attorney at Columbia Universitys Knight First Amendment Institute, which sued Trump last month, said theres no coordinated national effort to target Republicans. The goal is to establish that all elected officials no matter the party must stop blocking people on social media.

If its mainly used to speak to and hear from constituents, thats a public forum and you cant pick and choose who you hear from, Fallow said.

Rob Anderson, chairman of Utahs Republican Party, scoffed at the notion that politicians are violating free-speech rights by weeding out people who post abusive content.

You own your Facebook page and if you want to block somebody or hide somebody, thats up to you, Anderson said. Why else is there a tab that says hide or block?

Court decisions about how elected officials can and cannot use their accounts are still lacking in this new legal battleground, but rules for public forums side with free-speech advocates, said Erwin Chemerinsky, dean of the University of California-Berkeley Law School.

For instance, lower court rulings say the government cant deny credentials to journalists because their reporting is critical, he said.

These are government officials communicating about government business. They cant pick or choose based on who they like or who likes them, Chemerinsky said.

But public officials may be able to legally defend the way they police their social media pages if they prove their decisions are applied evenly.

Its got to content-neutral, Chemerinsky said.

Trumps use of social media and the Supreme Courts decision in June striking down a North Carolina law that barred convicted sex offenders from social media is driving the increased attention to the issue, said Amanda Shanor, a fellow at the Information Society Project at Yale Law School.

More and more of our political discussion is happening online, Shanor said. Its more important that we know what these rules are.

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Free-Speech Debate Swirls As Officials Block On Social Media - 89.3 WFPL