Patterico's Pontifications


Ken White on Free Speech

Filed under: General — Patterico @ 3:21 pm

This is a thought-provoking post. Being on a phone, I cannot easily quote it; you should read it all. I agree with many of Ken’s points, especially about the selective outrage we see on both sides of the political aisle.

Where I think I diverge from Ken is that I believe I am slightly less willing than he is, in general, to defend companies’ decisions to punish speech. I am going to go to the trouble of lifting a quote to make sure he gets his fair say:

2. The phrase “the spirit of the First Amendment” often signals approaching nonsense. So, regrettably, does the phrase “free speech” when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred+ First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn’t like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks “why was it necessary for you to say that” or “what was your motive in saying that” or “did you consider how that would impact someone” to the second person and not the first. It’s ultimately incoherent as a theory of freedom of expression.


6. Companies make decisions about hiring and firing based on both money and company culture. Sometimes these decisions are “right” in the sense that the decisions accurately predict what outcome will please the most customers and advertisers and keep revenues up. Sometimes the decisions are New Coke. Often the stated reasons for the decisions are hypocritical bullshit, as in the case of A&E. That’s the way it works. Discussions about corporate decisions in the wake of controversy are dominated by (1) people who normally excoriate corporate decision-making but suddenly applaud it when the outcome suits their political beliefs, and (2) people who normally celebrate the market and promote the privilege of corporate decision-making but suddenly find it unpalatable when it produces a result that offends their politics. Some of the people applauding A&E are people who last week were furious at the concept that companies have First Amendment rights. Some of the people trying to conflate A&E and the government are people who last week were vigorously arguing that companies should not have to insure birth control if it offends their religious sensibilities.

Now, that is not all Ken says, and he calls for charity, mercy, and consistency.

I agree that companies firing people for speech is not a “First Amendment” issue — but I disagree that invoking the “spirit of the First Amendment” is a signal that bullshit is on the horizon. I worry that we are creating a culture where any provocative expression renders one subject to being disciplined or fired, such that (as Ace notes on Twitter) only those who are unemployed or self-employed (or, I would add, have tenure or employers who reliably support their speech) have freedom to speak their mind.

What to do about this is not simple. Passing laws is a bad idea, I think, because it gives companies an incentive to hire only bland personalities who are unlikely to say anything controversial. I think the solution of more speech is the best solution: those who share my concern over the blandification of America should criticize online lynch mobs and companies that bow to them.

We should be consistent about this. I, for one, try to be.

I have a lot more to say about this, but not on a damned iPhone.

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