The Real Force Chipping Away at Your Right to Speak Your Mind

February 21, 2017

David French makes a key point about the battle to guarantee Americans' right to free speech:

I've spent a career defending free speech in court, and I've never defended a "conservative" like Milo. His isn't the true face of the battle for American free-speech rights. That face belongs to Barronelle Stutzman, the florist in Washington whom the Left is trying to financially ruin because she refused to use her artistic talents to celebrate a gay marriage. It belongs to Kelvin Cochran, the Atlanta fire chief who was fired for publishing and sharing with a few colleagues a book he wrote that expressed orthodox Christian views of sex and marriage.

Stutzman and Cochran demonstrate that intolerance and censorship strike not just at people on the fringe – people like Milo – but rather at the best and most reasonable citizens of these United States. They're proof that social-justice warriors seek not equality and inclusion but control and domination.

As odious as they are, campus speech codes and angry rioting leftists are not the biggest threat to most Americans' free speech. No, the much more common and insidious threat to the average American is their employer's human resources department freaking out about a social-media post done off the clock. Alexandria Brown suggested the actual threat to an American's free speech rights is someone else reporting their off-the-clock private social media posts to the employer's HR department. "The Lives of Others is not a how-to film," she notes sardonically.

Thankfully, exceptionally few Americans will ever find themselves in the position of Milo Yiannopoulos, facing an angry, violent mob standing between them and a speaking engagement at Berkeley. But a lot of Americans can easily find themselves in the position of Red Sox great and former ESPN commentator Curt Schilling, who woke up one morning to find his employer had decided he was no longer employable as a baseball color analyst because of a Facebook post about transgender men using the women's bathroom.

The era of social media allows us to communicate all kinds of ideas to audiences we never dreamed of reaching. Thousands of thoughts once expressed only to those within earshot of the barstool, the backyard barbecue, the office water cooler and other casual conversational hangouts can now instantly be transmitted to a global listenership. We haven't gotten any more extreme, bigoted, controversial, weird, or twisted than generations past; we simply can express thoughts on Twitter or Facebook so all the world can see. Yes, the world would be a better place if people exercised more discretion. Yes, a lot of people have opinions that range from controversial to odious. But some employers, terrified of the social media outrage mobs, now have a wildly itchy trigger finger. Katie Nash, social-media coordinator for Frederick County Public Schools, was fired earlier this year when she corrected a student's misspelling of "tomorrow." The school board's vice president said the tweet "was inappropriate and certainly created a lot of unpleasant responses in terms of other students piling on."

We're creeping closer to a society and an economy where holding a sufficiently controversial opinion or making a sufficiently controversial remark makes you unemployable or barely employable. This phenomenon of demanding people be fired for tasteless, dumb, or offensive social media posts inflicts an economic consequence a social "sin." Yes, there should be consequence, but the consequence should occupy the same realm. Imagining the reverse, a social consequence for bad economic judgment, is absurd. We don't get socially ostracized for frivolous purchases, overpaying, a tanking stock, or agreeing to attend that timeshare sales pitch. A social action should bring a social reaction – i.e., people responding, "your belief is nonsense."

This fire-the-controversial impulse dramatically changes the yardsticks for hiring someone to do a job. Schilling's opinion on transgender bathroom use didn't really change whether he's good at announcing a baseball game. But in this new world of social-media outrage mobs, the employer's criteria stops being, "who can do this job best?" The criteria becomes, "who can do this job best without causing any heartburn, headaches, or potential public relations problems because of their thoughts and opinions expressed outside the workplace?" This is a golden economic era if you're just barely good enough and thoroughly boring.

Our workplaces are not supposed to be our 24-7 masters. We are not representatives of our companies every waking moment of every day – or at least, this is a new and remarkably high standard to impose on American life. It allows almost no room for the normal human trait of doing sometimes something stupid, particularly when you're angry or upset. It imposes a lasting consequence for bad judgment usually made in haste.

A key portion of the notion of liberty in the United States was the freedom to hold unorthodox ideas without significant economic consequence. You can and should be able to happily appreciate the services of a barista who believes that crystals have healing powers, but the same belief might trouble you in a neurosurgeon. Your auto mechanic might believe that everything in the world is run by the Trilateral Commission and the Bilderbergers, but the key question is whether he can figure out what's making that groaning sound when you start the car. Chances are every great figure in American history had at least one extraordinarily oddball belief. Steve Jobs didn't wear deodorant, bathe regularly, and would soak his bare feet in the company toilets. Television star Jackie Gleason was obsessed with the occult and parapsychology.

The National Labor Relations Board has issued rulings and guidelines protecting workers from discipline or dismissal for "discussion of wages or working conditions among employees" but not general social-media posts not related to work.

Overcoming this trend will require a couple of wrongful termination lawsuits and American companies willing to say to the outrage mobs, "What our employees think, say, and do on their own time is their own business, and we're not about to start punishing our employees for their beliefs."

'Addiction to the Courtroom Is Bad for the Country.'

I like this National Review Online contributor. . .

There's no doubt that constitutional lawsuits have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.

This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there's little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs — real-world laboratories in which ideas can be assessed on the results they produce — are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.

. . .that contributor just happens to be Supreme Court nominee Neil Gorsuch, writing in February 2005.

Sadly, Gorsuch is now seriously downplaying the piece as he tries to make nice with Senate Democrats.

During his meeting with Senate Minority Whip Dick Durbin, Gorsuch told the Illinois senator that he hoped he would be half the nominee that Garland was. Gorsuch mentioned that he accepted a speaking invitation before the Federalist Society to talk about criminal justice reform, a cause dear to Durbin.

The judge even shunned a National Review article he penned in 2005 charging that "liberals have become addicted to the courtroom." Of the article, Gorsuch said he "wishes it would just disappear," Durbin recalled.

Asked whether he felt Gorsuch was saying these things merely to appease Democrats, Durbin responded: "This is a political world and that's where he's seeking his approval."

ADDENDA: For those of you who will be at CPAC, my remarks Friday afternoon will be at 2 p.m. in the Chesapeake E & F rooms, sponsored by the Capital Research Center.