Is it acceptable to influence another person in order to change their thoughts or behavior? Is it acceptable to coerce another person to change their thoughts or behavior? Is it always easy to tell the difference between influence and coercion?
If someone is engaged in civil dialogue with another, almost all of us would say they’re merely trying to influence the other’s thinking, and there’s nothing wrong with that. If, on the other hand, someone is harassing and threatening another, we would probably say that’s unacceptable. In fact the law already prohibits threats and harassment, and the Supreme Court has long held that neither threats nor harassment are “speech” for the purposes of the protections afforded in the First Amendment. See Watts v. United States, 394 U.S. 705 (1969) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
The distinction makes sense in the abstract, because whereas freedom of speech is meant to protect the free exchange of ideas, threats and harassment are more in the nature of conduct bereft of any cognizable idea. But what about the area in between civil dialogue on the one hand, and clearly threatening or harassing behavior on the other? Debate in a free society is often rough and caustic, yet for all that we do not ban speech that angers or insults, except in very rare and clearly defined circumstances such as incitement or defamation, and the legal hurdles to proving such claims are rightly high and rarely met. See Brandenburg v. Ohio, 395 U.S. 444 (1969) and New York Times v. Sullivan, 376 U.S. 254 (1964).
Yet living as we do in such polarized times, and with all our interactions on social media recorded and capable of being broadcast at any minute to an audience of billions, there is necessarily more concern about the possible consequences of engaging in spirited debate that some might find offensive. According to a poll taken last year by the libertarian Cato Institute, majorities of Americans on both ends of the political spectrum feel apprehensive about sharing their political opinions, but there was a significant difference between Democrats and Republicans. While half of Democrats felt the need to self-censor, three quarters of Republicans felt the same. These data are in line with other data showing that conservative university students are more concerned than their liberal peers that sharing their political views could cause them to get a lower grade or fall in the esteem of their professors and peers.
And then of course there is the fear of losing one’s job or having one’s university admission revoked. James Damore famously lost his job at Google after circulating a memo in which he claimed that women were biologically less predisposed to work in the tech industry, and therefore that diversity and inclusivity initiatives were wrongheaded. Sean Glaze lost his spot at Xavier University after he wrote that “in America you can be racist as long as you don’t act on it,” and said that Ku Klux Klan rallies were less violent than the protests that had erupted after the killing of George Floyd.
But while cases like these make some people fear the consequences of speaking candidly, they also raise some fairly obvious questions. For starters, don’t we always self-censor to some degree just as a matter of basic politeness? Not all self-censorship is bad. Much of it is a necessary social lubricant found in all societies, especially those, like ours, where tolerance for diverse worldviews is enshrined in the Constitution. For another, the metaphor of free speech as a marketplace of ideas would not be complete if it were not the case that some ideas will simply go out of business because too few people subscribe to them. There may be some people for whom the questions whether we ought to own human beings, or whether women should be allowed to own property or work outside the home, are live issues, but most of us feel there is no need to relitigate them. In fact, to shift to a different metaphor, we might say that the harsh and caustic reaction we have to the mere expression of such ideas is like an immune response, protecting the body politic against reinfection with ideas that proved very harmful in the past. Stripping us of that moral immune response would likely be as dangerous to society as stripping an individual of his biological immunities.
Finally, what happens when accommodating one person’s freedom to fully express themselves necessarily requires infringing the freedom of another to do the same? Business owners have to maintain a hospitable working environment for their employees, as well as a good reputation with their customers and suppliers. Dismissing employees whose speech harms those interests is simply sound business. It is also the right of employers not to be associated with speech they disagree with, or to have the public given the impression that, by retaining an employee who makes controversial or offensive statements, the employer also ratifies or endorses such statements.
The law has attempted to strike a balance between these interests. Although the First Amendment does not protect one’s right to free speech against private actors, the National Labor Relations Act does place some restrictions on the kind of political speech that employers can ban. These protections are quite scanty, though, and mainly concern speech relating to unions and unionizing. However, some states have gone much further. For example, Section 1102 of the California Labor Code provides that “[n]o employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”
Most states have not gone as far as California, which seems at first glance to have an absolute rule against terminating someone for their speech. However, even the California law requires that the speech in question concern “political action” or “political activity.” It is not clear that James Damore, for example, would be able to convince a California judge that his memo was political speech, rather than a polemic about sex, psychology, and corporate policy. See Katharine Pickle, Why Google May be in the Right: An Analysis of Political Discrimination in the Workplace, Emory Corp. Governance and Accountability Rev., https://law.emory.edu/ecgar/perspectives/volume-5/perspectives/google-political-discrimination-workplace.html.
To the extent that other state laws allow more wiggle room for employers to terminate employees as long as there is a sound business reason for doing so — and not simply because the employer finds the employee’s speech objectionable — it should not be hard to find one. And where state laws do go as far as California’s, the effect over time may simply be to shift employers’ scrutiny of employee speech to the front end, scouring social media during the interview phase for anything that might provide a reason not to extend an offer of employment in the first place.
In other words, while legal means exist to try to balance the competing interests here, it’s not clear that at the end of the day they will actually reduce the felt anxiety around political speech and the need to self-censor, at least in the workplace.
And there are other ways in which the freedom of speech of different groups of people can collide in ways that the law looks powerless to address. According to a recent survey from Pew, nearly half of African-Americans with college degrees feel the need to “code-switch” in their interactions with white people, particularly in professional settings. Code-switching is a term coined by the American linguist Einer Haugen in 1954, and which has come into common usage today to refer to the ways that Blacks and other minorities “adjust [their] style of speech, appearance, behavior, and expression in ways that will optimize the comfort of others in exchange for fair treatment, quality service, and employment opportunities.” See Courtney L. McCluney et al., The Costs of Code-Switching, Harv. Bus. Rev. https://hbr.org/2019/11/the-costs-of-codeswitching.
McCluney and her co-authors argue that “code-switching is one of the key dilemmas that black employees face around race at work. While it is frequently seen as crucial for professional advancement, code-switching often comes at a great psychological cost. If leaders are truly seeking to promote inclusion and address social inequality, they must begin by understanding why a segment of their workforce believes that they cannot truly be themselves in the office.”
The need to code-switch, to have two identities, one for the Black community and one for white consumption, has been a part of the African-American experience for a very long time. Back in 1903, W.E.B. DuBois wrote “It is a peculiar sensation, this double-consciousness, this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity. One ever feels his two-ness, an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder.”
Perhaps we could get to a place some day where half of all Black college graduates no longer feel the need to self-censor and self-alienate in this way, but I don’t see how the law can fix this. Films like Boots Riley’s 2018 dark comedy Sorry to Bother You can do a lot to educate white audiences about code-switching, and of course there are more serious steps employers could take to try to educate their workforces. I think we are seeing this in the emphasis on diversity and inclusivity training. Many white and conservative employees claim that diversity initiatives are “divisive,” but what’s truly — literally — divisive is the way that their Black colleagues feel they have to split their identities in two, and I wonder if some of those conservatives might feel differently if they were fully aware of the psychological and emotional labor their minority colleagues take on themselves simply to survive and advance in mostly-white workplaces. My personal feeling is that more conversations about race are needed, even if they are uncomfortable, but I raise this example simply to make the point that, in this and probably many other cases, freedom of speech may indeed be a zero-sum game, at least for the time being. Conservative whites will feel silenced when they refrain from criticizing corporate diversity training, and their Black colleagues will feel silenced when they have to continue putting on a mask just to receive fair treatment from their white peers.
So where does that leave us? No one was ever criticized for calling for more civility and less outrage, but that’s mainly because it’s so easy to do. It’s harder to recognize that sometimes outrage is the appropriate reaction, and sometimes it’s not. And sometimes it won’t be clear, with reasonable people disagreeing. But no matter how we feel, listening is always good. Most of the negative consequences of our rough-and-tumble marketplace of ideas, including those that currently go by the name of “cancel culture,” are features of the system, not bugs. They are simply what happens when irreconcilable values or worldviews collide. There’s not much you can do about them that won’t involve trading off one person’s liberty for another’s. One helpful idea may be to ask what causes values and worldviews to diverge so greatly in the first place. Perhaps polarization waxes and wanes in intensity according to underlying factors like socioeconomic inequality, political dysfunction, and the extent to which our large and diverse populace is able to silo itself off into segregated communities, online or off. If we want calmer public discourse, we might try to address those underlying trends rather than using each side’s latest excesses as an excuse to retreat even further from one another. Or, we could take a hands-off approach, make our arguments courageously and authentically, and trust in the marketplace of ideas to reach a new, more stable equilibrium over time. Either way, simply complaining about “cancel culture” seems like the least productive thing we could do right now.