Most people seem to think that free speech means saying whatever you want without consequences. But that’s never been true — at least, legally speaking. The First Amendment stops the government from punishing you for your opinions. Beyond that, you’re on your own.
Some institutions, like universities, promise their members they won’t be punished for free expression. But for-profit employers rarely promise to protect employees’ speech, for market-oriented reasons. Because companies care about what customers and clients think, they typically reserve the authority to make workers comply with their preferred speech policies.
So-called “cancel culture” offers a clear example of how what you say can have consequences. Those canceled in recent years mostly found they had little recourse other than abjectly apologizing and hoping the cancellation would have a sell-by date. Consequences ranged from getting fired to losing work to simply being criticized — albeit brutally.
As it happened, most canceling initially came from the left. As a consequence, most leftists either thought there was nothing wrong with the practice or pointed out that “cancellation” was nothing more than the exercise of free speech by critics.
The right, for its part, complained bitterly but offered little in the way of a principled objection to the idea that people are free to criticize, even boycott, opinions they don’t like. In the end, cancellation emerged as a phenomenon enabled by the combination of free speech and free market forces.
Since Hamas’ terrorist attack on Israeli civilians on Oct. 7, the political winds of intense public criticism have shifted. Left-leaning critics of Israel are now finding themselves the targets of calls for cancellation.
Paddy Cosgrave, the CEO of Web Summit, had to step down after a tweet that called out Israeli war crimes but never mentioned Hamas, let alone its intentional killing of noncombatants. Cosgrave tried to retract and contextualize, but his efforts were not sufficient to save his job. He’s only the most prominent example — others whose tweets have cost them employment include journalists and actors.
Meanwhile, at law schools including NYU, Columbia and Harvard (where I teach), several students have had job offers rescinded by corporate law firms on the theory that they — or organizations they led — excused or endorsed violence committed by Hamas. In some cases, this happened even after the students made it clear that they condemned Hamas and their organizations retracted their earlier statements.
Under principles of academic freedom, a university may forcefully disagree with its students’ views but must not not punish students for expression of political opinions. Academic freedom isn’t exactly the same as First Amendment free speech. Its purpose is to foster an atmosphere of open intellectual discussion in pursuit of truth under conditions of civility, not to impose the strict neutrality that bars government from picking winners in the realm of ideas.
That means universities may exercise professional judgment about the quality of ideas when making decisions about hiring, tenure or grades. It would be impossible for the university to be entirely neutral about the content of ideas when fulfilling these functions. (Public universities pose their own complex problems. They are both state actors for First Amendment purposes and also academic institutions.)
Private employers don’t adhere to the principles of academic freedom nor are they bound by the First Amendment. Their calculus is different: They have to weigh the reputational costs of hiring people associated with controversial political positions against the reputational costs of being seen as having a political litmus test for employees.
Our polarized politics mean that companies must tread carefully when they make expressly political decisions. They owe it to their employees, their customers and their shareholders to exercise good judgment after real thought. Companies do better when they have clearly stated values and transparent processes in place for sound decision-making.
As for individuals, we no longer have sharp dividing lines between our social media lives, our work lives, and our expression of political ideas. It follows that we had better realize that that the difference between contexts determines the consequences of our speech.
The First Amendment remains a bedrock of democratic values, but it protects us from the state, not from each other.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
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