Mark Joseph Stern, the “gay politburo official at Slate,” has an extraordinarily silly piece titled The Astonishing Conservative Hypocrisy Over Mozilla and the First Amendment. Stern is the Slate writer who last month fell for a hoax story written by a satire publication that publishes such articles as Vladimir Putin and Kim Jong Un Announce Openly Gay Relationship, Plan Global ‘Reign of Tyranny’ as New Power Couple. Now Stern turns his extraordinary powers of observation towards conservatives, whom he brands as hypocrites for denouncing the ouster of Brendan Eich as the CEO of Mozilla. Eich’s sin? Having donated $1000 to the pro-traditional marriage Prop. 8 campaign several years ago. Here’s Stern:
A repeated cry in conservative and libertarian circles over anti-gay Mozilla CEO Brendan Eich’s resignation is that the company is somehow trampling Eich’s free speech rights. Eich, as you’ve surely heard, donated $1,000 in 2008 to California’s Proposition 8 campaign, which successfully outlawed gay marriage in that state before getting shot down by the courts. It’s true that, because of this donation, Mozilla’s leaders and board members pressured Eich to resign. But it’s absurd and hypocritical to claim that this pressure constituted an infringement of Eich’s legal rights.
Stern begins the analysis by destroying a strawman argument: that Mozilla, a private company, is violating Eich’s First Amendment rights. Only government can violate someone’s First Amendment rights, but no serious commentator is arguing otherwise. So let’s move on:
But I can already hear the inevitable retort: Sure, Mozilla wasn’t literally trampling on Eich’s First Amendment rights, but it was violating the broader principles of free speech and free association. This argument is strikingly one-sided and opportunistic. Corporations like Mozilla, for better or worse, are also endowed with significant rights of free speech and free association—for instance, the freedom of Mozilla’s board and leadership to condemn Eich’s anti-gay actions. And make no mistake: Freedom of association includes the freedom of exclusion, particularly the freedom to exclude from your private organization an individual whose conduct is inconsistent with your values. Mozilla’s decision to seek Eich’s resignation implicates the same First Amendment principles that famously allow the Boy Scouts to exclude gay troop leaders.
Here Stern is conflating two distinct issues: 1) should Mozilla have the legal right to dismiss Eich? and 2) should Mozilla have dismissed Eich? Stern seems to argue that, because the answer to the first question is “yes,” that somehow refutes those of us who answer the second question “no.” Here, Andrew Sullivan (yes, Andrew Sullivan!) makes the correct argument:
As I said last night, of course Mozilla has the right to purge a CEO because of his incorrect political views. Of course Eich was not stripped of his First Amendment rights. I’d fight till my last breath for Mozilla to retain that right. What I’m concerned with is the substantive reason for purging him. When people’s lives and careers are subject to litmus tests, and fired if they do not publicly renounce what may well be their sincere conviction, we have crossed a line.
I agree — although it also matters, I think, what that sincere conviction is, and how it is expressed. People understandably want to propose a rule that will apply to any belief, however outrageous and inappropriate, and however it is expressed. But not all speech and beliefs are the same. If instead of donating to Prop. 8, Eich were donating to the KKK, I would have no problem with a company wanting to bounce him out. The example becomes even easier if Eich were expressing that sentiment publicly, in crass ways: imagine if Eich had a personal blog in which he continually used disparaging racial or religious epithets as he encouraged readers to donate to the KKK. The fact is, not only should a company be entitled to decide whom it employs, but sometimes a company is right to use a person’s personal beliefs — depending on what they are and how they are expressed — as a reason to fire an employee.
A similar point of view was expressed by Ken White in this post about Pax Dickinson, although I felt that Ken’s post was a bit too dismissive of the legitimacy of criticism of certain social consequences for speech.
Even though I think employment-related social consequences for speech can be appropriate, I maintain that such situations are, and should be, extremely rare — and that questionable cases should generally be resolved in favor of not disciplining an employee, because of the danger of letting political correctness ruin people’s lives.
Ultimately, I think you can’t draw lines that don’t take account of the fact that some speech simply is appropriate, and some is not. You can’t go around insulting everyone you meet, using profanities in inappropriate situations, and using racial and other epithets without risking some severe social consequences. On the other hand, when a company fires people for holding beliefs that were once expressed by the current President when he was running for office, I think that company ought to come in for some criticism.
Getting back to Stern, my assessment of him is that he considers opposition to gay marriage to be 100% equivalent to opposition to interracial marriage: it is indicative of a bigoted state of mind, and the holder of that sentiment deserves any negative consequence he has coming to him. Stern and I simply disagree here, and even though I voted against Proposition 8, I do not consider all (or even most) supporters of that proposition to be bigots or homophobes. I consider most of them to hold sincere beliefs based on a respect for an institution — traditional marriage — that has survived for millenia.
And Mr. Stern? If Vladmir Putin and Kim Jong Un want to get married, as the publication you trust claims, then I have no problem with that. But I don’t want to go on a witch hunt against people who do.