In the last year, the two names that have most dominated debates about employee free speech are former Google employee James Damore and former professional quarterback Colin Kaepernick. Both men engaged in controversial on-the-job speech that contradicted stated corporate priorities and values: the National Football League wants its players to stand for the national anthem, Kaepernick knelt in protest; Google said Damore violated its code of conduct by “advancing harmful gender stereotypes in our workplace.” Both men sparked a furious reaction, and both ultimately lost their jobs.
The debate over Kaepernick and Damore is complicated — there’s no government censorship involved, and the corporations that cut ties with them have their own free speech rights to consider. Evaluating public reaction, cynics could be forgiven for thinking the only “principle” involved is tribalism: Conservatives lined up for Damore and against progressive Google; Democrats lined up for Kaepernick, and against an NFL cowed by President Trump’s view that railing against kneeling football players was a political winner for him. But shouldn’t there be an underlying principle, a standard that protects legitimate corporate interests while also protecting the culture of American free speech? Yes.
Thankfully for America, Roseanne Barr came along. Amid her vile, racist tweeting, she inadvertently showed the way through the free speech minefield: The standard we ought to apply is one of decency.
All three cases are different. Damore’s memo about gender discrepancies was internal and later went public; Kaepernick’s public protest took place on company time; the tweet that got Barr fired was done off the clock but was made in a public forum. But it’s possible to draw a line with Barr on one side, and Damore and Kaepernick on the other, without resolving the on-the-job/off-the-clock distinction.
Barr’s now-deleted Twitter attack on Valerie Jarrett, “muslim brotherhood & planet of the apes had a baby=vj,” possessed zero redemptive value to offset the corporate pain. It wasn’t thoughtful — it was one of the most undistilled versions of racism you’ll ever read. It offered no attempt to engage with public policy or cultural controversy — it was purely ad hominem. In other words, it was both unprofessional and indecent.
Damore and Kaepernick’s speech, by contrast, could only be characterized as unprofessional and indecent if a person buys into the notion that disagreement on matters of identity or patriotism is inherently suspect. In other words, the difference between Barr’s speech and Damore’s and Kaepernick’s wasn’t just a matter of degree. A respectful, silent kneel — even if it scrapes against the reverence for American flag that many NFL fans, myself included, feel — isn’t unprofessional. A thoughtful memorandum — even if it struck many readers as an ill-conceived assessment of, if not attack on, Google’s diversity efforts — isn’t indecent.
Indeed, the Damore memo triggered a lively scientific debate, with credible voices, such as neuroscientist Debra Soh, arguing that Damore’s views on gender were right. But even for those who conclude he’s wrong, the more important note was Soh’s question, “If we can’t discuss scientific truths, where does that leave us?”
Kaepernick’s protest occurred within the context of an intense, ongoing public dialogue regarding police treatment of African Americans, a debate that has haunted American politics for decades and has been ratcheted up in recent years, as viral videos have documented multiple fraught encounters between police and black citizens. Reasonable people can disagree about the propriety of placing this issue in the middle of a football game. But the issue’s urgency can’t seriously be placed in doubt.
Neither case involves personal insults of the type Barr has flung. In fact, both Damore and Kaepernick, in different ways, made clear they wanted to express support for those who felt most offended by their speech. In his memo, Damore stated, “I strongly believe in gender and racial diversity and think we should strive for more,” and he offered concrete suggestions as to how to improve female representation in Google’s ranks. Kaepernick reached out to veterans and, in an interview, explained to those who saw his protest as unpatriotic that “I’m not anti-American. I love America. I love people. That’s why I’m doing this.”
Which brings us to the modern temptation to politicize everything. If the mission of a corporation isn’t just to sell its product but also to advance its version of social justice or patriotism (or if the corporation’s version of social justice or patriotism is part of how it sells its product) then it’s easy to see the potential threat to free expression. Employees who embrace the corporate ideology enjoy a free rein while employees who dissent, no matter how thoughtfully, risk termination. Such a direct threat to individual livelihoods is far more threatening to free expression than the current power of government to censor disfavored speech.
And that’s where the customer comes in — the responsibility for protecting free speech rests not just with employers. Customers, also known as “we, the people,” have a role. It’s not fair to expect a corporation to protect employee liberty to the point of bankruptcy or serious financial damage, so if Americans care at all about preserving a culture of free speech, they, too, must exercise a degree of restraint. Damore’s view of the way evolutionary psychology affects gender difference is irrelevant to his ability to code; Kaepernick’s kneeling may well affect whether you view him as a role model, but it shouldn’t affect anyone’s ability to appreciate whether he can evade a blitz and throw an accurate pass at a full sprint.
Right now, though, we see customers on the right and left locked in an arms race, competing to see which side can more effectively flex its muscle to silence the other. Google doesn’t face the kind of market pressure the NFL does, but its employees are key to its success, and all too many of Damore’s colleagues felt empowered to use their voices to silence his. In few arenas do conservatives exercise the kind of cultural sway that they hold over the NFL, and it’s unfortunate that rather than demonstrating the tolerance they seek on liberal campuses and in Silicon Valley, they’ve followed the president’s lead in demanding their own brand of ideological conformity.
So, where is the line? How about this: Corporations have their own free speech rights, and the proper exercise of those rights shouldn’t pose a risk to the speech of others. If a bank wants to have an opinion on reproductive freedom, have at it. That’s an exercise of constitutional liberty. At the same time, however, that bank should tolerate a wide range of dissent among its employees if that dissent is respectful, professional and doesn’t interfere with the employee’s core duties. If an employee wants to take to Twitter to oppose his bank’s support for, let’s say, Planned Parenthood, the employee should feel free. For our part, we, the customers, should expect excellence in a business’s core competency while exercising restraint in demanding political orthodoxy.
If you think that means “anything goes,” look to “Roseanne.” Nothing required ABC to cancel the show, but its cancellation doesn’t represent a threat to America’s free speech culture. Barr crossed a bright line, and in crossing that line, she brought a needed dose of perspective to the corporate speech debate. Tolerance for dissent is vital, but at the end of the day, professionalism and decency aren’t — or shouldn’t be — too much to ask.