Saturday, February 17, 2018

Freedom of Speech and Employment

I have long defended the right to freedom of speech.

I have called it a right that creates in others a duty to not respond to words and communicative actions with violence or threats of violence. It does not create a duty on the part of others not to criticize my claims or even to condemn me for making them. Criticism and condemnation are speech, and thus are protected by the right to freedom of speech, not prohibited by them.

However, the line between what does and does not count as violence is sometimes not easy to draw.

Many people these days lose their jobs when they say things that others think ought not to be said.

Before taking off for a trip to Africa, Justine Sacco tweeted, "Going to Africa. Hope I don't get AIDS. Just kidding. I'm white!" The tweet generated an internet firestorm and, by the time she had landed, she had been fired from her job.

If the proper thing for Company A to do in such a case is to fire a person, then it must be assumed that the proper thing for every other company to do would be to not hire her.

However, somebody who is put in a position where she cannot be hired, then that person's life is effectively over. Perhaps not literally, but there is no denying the fact that a person put in a position where she can have no job - obtain no employment - then she has suffered a significant harm. There are many alternative acts of violence that are far less harmful. Insofar as this type of reaction is significantly more harmful than violence, then there is at least a prima-facie case that suggests that, if the right to free speech prohibits violence or threats of violence, then it must also prohibit other harms that are worse than those inflicted by violence.

Yet, the business that employed her - and other types of business - have to worry about another type of harm. Assume that it is discovered that the owner of a local business is a Nazi. As a result of this revelation, people refuse to patronize his store. He goes out of business. This is another significant harm - perhaps more significant (to the owner, at least) than if somebody had simply torched the building insofar as, in the latter case, he would be able to collect the insurance.

Yet, it would seem clear that the right to freedom of speech would protect a boycott of a business as a type of legitimate protest.

We can combine the two cases if we imagine a business that is discovered to have an employee who is a Nazi. As a result, many in the community band together to boycott the business so long as it employs such a person. The right to freedom of speech seems certainly to allow this type of protest. Yet, it still creates a situation in which the employee, if it is declared that nobody may employ him, suffers a harm that is far worse than many types of violent harm as a consequence of his words and communicative actions.

I have presented an example where the business owner is a Nazi, and one in which the business owner employs a Nazi, in my two examples. However, we may reverse this situation and say that the community itself is largely antisemitic and the business owner (in the first case) or the employee (in the second) is a Jew. For the sake of these examples, we should imagine that the term "Jew" is not being used to identify people from a particular region or with a particular genetic makeup, but people who adhere to the Jewish religion. So, now we have a situation where the antisemitic community is effectively - not by law but by social pressure - prohibiting any Jew from owning a business or from being employed by any business.

Is there a way of claiming that the boycott of the Nazi owned business or business with the Nazi employee is permissible in the first set of cases, but the boycott of the Jewish-owned business or business with the Jewish employee is prohibited in the second?

I am actually asking this question because it puzzles me, and I cannot offer a clean and simple solution.

At the top of my list of legitimate answers is that the protest against the Nazi-owned business or business that employs Nazis is legitimate, and the protest against the Jewish-owned business or the business that employs Jews is illegitimate, because Nazis are evil and Jews are not.

It would not be a legitimate response to this to say that the Nazi disagrees with the claim that Jews are not evil. The Nazis are mistaken. This response makes the legitimacy of protest depend on being right about the moral facts, and the moral facts are that the Nazi is evil. The Jew might be evil, too. However, this is not guaranteed.

However, this runs contrary to the idea that the right to freedom of speech is a right to have and to hold and to express a contrary opinion. It allows antisemitic individuals to express the opinion that Jews are evil even if they are mistaken. Consequently, this response seems to have its limits.

On the bright side, one of the reasons why I hold that desirism is the correct moral theory is grounded on the fact that sometimes it correctly identifies a difficult moral problem as being difficult - a fact that many competing moral theories sometimes miss. This, I think, is one of those situations.

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