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Debate Club
DEBATE CLUB 3/21/05

Forget Free Speech?

Geoffrey Stone and Eugene Volokh debate.

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Is the blacklist back? Actors such as Sean Penn have lost roles and musicians like the Dixie Chicks have had their singles denied play on the radio because the Chicks expressed their political views. In an era of terrorism, do these actions reflect a new McCarthyism or legitimate attempts to rein in dangerous speech?

In a forthcoming essay in the California Law Review, UCLA law professor Eugene Volokh explores the difference between repression and permissible restrictions of free speech. How far can the government—or movie studios or radio stations—go in their efforts "to prevent speech that they think to be evil and dangerous?"


Geoffrey R. Stone is Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago and author of Perilous Times: Free Speech in Wartime. Eugene Volokh is Professor of law at the UCLA School of Law.

Stone: 3/21/05, 08:56 AM
Of course, there's a critical difference between the government, on the one hand, and movie studios and radio stations, on the other. The First Amendment constrains the former, but not the latter. Eugene, you and I agree that the government cannot constitutionally direct movie studios not to employ Sean Penn or radio stations not to play the Dixie Chicks.

But what about movie studios and radio stations? Can they "legitimately" rein in speech they believe to be "dangerous" or "offensive" by blacklisting the likes of Sean Penn and the Dixie Chicks? The problem with this question is in the word "legitimately." Certainly, they wouldn't violate the First Amendment if they did this. Moreover, they probably wouldn't violate any other law.

Interestingly, although we routinely prohibit private discrimination of the basis of such characteristics as race, religion, and gender, we almost never prohibit private discrimination on the basis of political expression. For some reason, we seem to think that although a fast food chain shouldn't be allowed to deny employment to blacks,
Buddhists, or women, it's perfectly "legitimate" for it to deny jobs to Socialists or Libertarians, or people who voted for Ralph Nader.

Thus, from a strictly legal standpoint, the movie studio and radio station can do whatever they please to Sean Penn and the Dixie Chicks. Their conduct would pose a legal question only if the government was somehow complicit in their actions. Do you think this is a good state of the law, Eugene? Why should private actors be allowed to discriminate on the basis of political belief, association, or expression? Why shouldn't the law prohibit such discrimination?

I suppose I've wandered from the point, though. I take it that the real question, or at least the first question, is whether we've entered a new era of McCarthyism. Of course, this is a matter of degree. No sensible person can believe that the current state of affairs is comparable to the ravages of McCarthyism. The government has not enacted an official "loyalty" program, it does not declare certain organizations to be "subversive," and there isn't rampant private discrimination against those who criticize the fundamental premises of our society or government policy.

But perhaps that's a bit too self-satisfied. After all, the government has put in place an array of laws punishing people who provide something called material support to "terrorist" organizations, and this begins to sound a bit like the old "are you now or have you ever been" inquiry. What do you think, Eugene? Does any of this smack of McCarthyism? And was McCarthyism so bad, anyway?

Volokh: 3/21/05, 01:07 PM
May media outlets legitimately "rein in speech they believe to be 'dangerous' or 'offensive,'" by refusing to play the Dixie Chicks or hire Sean Penn? May a restaurant legitimately fire someone based on his politics? Let me take a stab at these excellent questions.

First, a general observation: Employers routinely "rein in" racist or otherwise bigoted speech—recall the firing of TV commentator Jimmy "the Greek" Snyder, the suspension of Andy Rooney, and the suspension and fine of pitcher John Rocker. Police departments fire employees, including purely clerical employees, for racist statements. I suspect that joining the Klan is usually a dumb career move.

Racist or pro-Communist viewpoints are surely ethically distinguishable from anti-war or even unpatriotic views. But if we speak of a law "prohibit[ing] ... discrimination" "[based on] political belief, association, or expression," we should realize that Snyder, Rocker, and racist cops would be as protected as others.

Second, entertainers draw commercial value from public goodwill. Consumers who get angry at the Dixie Chicks may stop enjoying their songs. If that seems likely, then it makes sense for radio stations to stop playing those songs.

Entertainers also derive much of their political voice from public goodwill. Natalie Maines had a large audience for her expression of contempt for President Bush because she was invited to sing, not because she was invited to deliver a political lecture.

Supporting these entertainers thus helps support their political message, just as patronizing a business helps support the owner's political projects. Consumers or business partners may thus understandably cut off their support, and pressure others to do the same. Groups have retaliated against businesses that contribute to pro-life causes, or pressured businesses to stop advertising on the conservative Sinclair Broadcasting. Consumers may likewise retaliate against entertainers—consider the 1970s boycott of Florida orange juice, triggered by spokeswoman Anita Bryant's anti-gay statements.

Third, there is indeed a social norm against employers' firing ordinary employees—employees who don't derive political influence from their jobs—for statements that are merely unpopular.

But statements that seriously alienate coworkers or patrons, or make people reasonably worry that the speaker will act illegally, may cost the employer a lot of money. The legal system makes tolerating such statements even more costly. A manager's racist or antireligious off-the-job speech can be used as evidence in a discrimination lawsuit. An employee's praise of crime can be used as evidence in a negligence hiring lawsuit, if the employee later commits the crime.

Employers, I think, should be free to stop employing employees who have become too costly. I may return in a future post to the specific distinction between discriminating against people who have widely disliked views, and discriminating against people who belong to widely disliked races and religions. But for now, let me just ask you, Geof:
What should employers be able to do about the Rooneys, Rockers, Bryants, pro-child-molestation schoolteachers, or managers whose KKK membership scares and alienates employees, customers, and potential future jurors?

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Stone: 3/22/05, 09:31 AM
Again, we need to separate government from private employers. You suggest that the police department can constitutionally fire employees for racist expression. This isn't obvious to me at all. Even conceding that government can deal with employees differently than it can deal with ordinary citizens, it's well established that public employees have First Amendment rights.

Surely, you're not suggesting, Eugene, that the government could fire a fireman or a teacher for signing a "racist" or "anti-gay" or "pro-life" petition or for voting for a Communist or Libertarian political candidate? In my view, the government may not fire or refuse to hire an individual because of her political views unless she has abused her official position or is in a policy-making or national security position. The government should no more be able to fire a police officer who makes racist remarks outside the scope of his employment because citizens will be offended or distrust him than it should be able to fire a police officer who is black because white citizens won't trust a black to do his job properly.

As I observed in my first posting, I agree that private employers are different. Even in employment discrimination law, we recognize that it would be inappropriate for the law to intrude too deeply into personal relationships. Thus, small employers are exempt. Similarly, we don't make it unlawful for a person to refuse to date a person of another race. Thus, the law shouldn't concern itself with individuals who decide not to buy the Dixie Chicks's records because they dislike their political views.

But the logic of this doesn't extend to a decision, for example, by General Motors to refuse to employ people who oppose the war in Iraq. Large corporations have substantial market power, and I see no reason to allow them to leverage that market power in this way any more than we let them discriminate on the basis of religion. Radio and television stations are in a more interesting position. On the one hand, they are themselves involved in First Amendment activity. On the other hand, they are using public resources to do so. If the FCC can prohibit them from using profanity or showing a breast, I see no reason why it shouldn't prohibit them from using their licenses to discriminate against particular speakers based on their political views.

But let's return to the issue of McCarthyism. Suppose the government refused to employ people suspected of holding views sympathetic to terrorists. Would you be O.K. with this? Suppose the public "demands" that major corporations fire any person who gives or has given money to any pro-Palestinian organization or anti-American organization? Suppose those corporations started blacklisting such individuals? Would that trouble you?

Volokh: 3/22/05, 03:09 PM
Your proposals are intriguing, but I think we'd agree that they would be a large change from current laws and social norms. For starters, it seems that, under your analysis, employers' intolerance for off-the-job bigoted speech is McCarthyism. CBS was being McCarthyite for firing Jimmy the Greek or suspending Andy Rooney.

Moreover, while government employers are somewhat constrained by the First Amendment (though less than when dealing with private citizens), your proposal that "the government may not fire or refuse to hire an individual because of her political views unless she has abused her official position or is in a policy-making or national security position" goes far beyond existing law—even beyond what Justices Brennan or Marshall had urged. Police departments wouldn't be able to fire Klansmen, even if the public reasonably fears that the Klansmen will act on their racist beliefs. Public schools wouldn't be able to fire teachers who edit newsletters that advocate sex with children .

And to make your proposals fair to employers, we'd have to change another rule: Employees' off-the-job speech would have to become inadmissible in lawsuits against the employer. A manager's racist statements couldn't be used in a discrimination lawsuit; a schoolteacher's pro-molestation statements couldn't be used in a negligent hiring lawsuit.

These might be good changes, because they would indeed diminish important deterrents to employee speech. But they would be striking changes, with effects far beyond speech about the war, the government, or terrorism.

Monday, I suggested a different approach: Entertainers and commentators—people whose value flows from public goodwill and respect—may properly be dismissed when they lose that respect. Ordinary employees generally shouldn't be dismissed based on their views, unless the views are seen as so reprehensible that they expose the employer to significant business losses or potential liability. And any restraints on employers should operate through social norms, not legal rules.

But, some might ask, why treat politics different from race, sex, and religion? Private employers can't fire a black employee simply because customers dislike him; why should they be able to fire a racist because of customer dislike?

Let me brief sketch an answer: The premise of most antidiscrimination laws and social norms is that it's wrong and usually irrational to dislike people because of their race, sex, or theological beliefs. We hope condemning such discrimination will persuade customers and employees to be more tolerant, especially since tolerance is rational and practical, so the burden on employers of having to hire disliked minorities will decrease. And the correlation between behavior and race, sex, or theological belief is quite weak. (In principle, the correlation between purely theological belief and behavior may sound plausible, but I think it ends up being weak in practice.)

But disliking Klansmen is reasonable. We can't persuade people otherwise, and we shouldn't try. Moreover, employees tend to act on their political beliefs. Forcing employers to ignore employees' bad tendencies and patrons' understandable hostility to employees with bad views, isn't fair to the employers who have to pay for such a rule.

Yet nonetheless, Geof, I share your concerns, and can't deny that your approach has appeal. Perhaps it would be better if customers or coworkers could swallow their hostility to (say) racist, Communist, pro-terrorist, or pro-child-molester employees, entertainers, and commentators. Perhaps at least government employers should have to retain such employees. The result would indeed be more vibrant public debate. But, boy, it would be quite a change—not just from what we have today, but from what we had for decades.

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Stone: 3/23/05, 09:01 AM
Yes, what I suggest would be a very big change in the private sector, but I don't agree that it would be a big change in the public sector. Apart from the old Communist cases, and the specific situations I noted in my prior posting, I can't think of any decision of the Supreme Court in which the Court has suggested that the government can constitutionally fire or refuse to employ individuals because of their political beliefs, however much those beliefs may offend co-workers or members of the public.

Although the Court has said that the government must balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service," it has never given broad license to government agencies to refuse to employ people merely because they join organizations or express views that others may abhor. Are you suggesting, Eugene, that you think the Court would or should uphold a government policy refusing to hire teachers who publicly support gay marriage, prosecutors who are members of religions supporting polygamy, or police officers who belong to groups advocating white supremacy? If so, what "test" would you have the Court apply to make such decisions?

By the way, I certainly don't mean to argue that every decision of an employer—public or private—to refuse to hire someone because of his political beliefs constitutes "McCarthyism." McCarthyism was political intolerance run amuck through every sector of society—federal, state, and local government, education, business, religion, the professions, and so on. But to say that less odious and pervasive forms of ideological discrimination don't rise to the level of McCarthyism is not to say that they shouldn't be restricted.

To the point about using antidiscrimination laws to promote tolerance of people of other races, religious, and ethnicities, I would say the same about political differences. Isn't that the view that Lee Bollinger championed as a primary function of the First Amendment itself? Certainly, a more "tolerant society," a less polarized society, one in which citizens come to understand, in Jefferson's words, that not "every difference of opinion is a difference of principle," is something to which we should aspire. And, as for the Klansman, perhaps tolerating his presence in the workplace would be good both for him and for us. No?

Here's a broader question for you, though. To what extent, if any, do you think the current mood of the nation and the state of international affairs make the United States vulnerable to a new version of "McCarthyism" in the future? Suppose we had four 9/11s in the next four months, each carried out by Muslim-Americans?

Volokh: 3/23/05, 01:41 PM
I think that under the Court's current doctrine, a person's political speech may indeed lead to firing, if the government's interest "as an employer, in promoting the efficiency of the public services it performs through its employees" outweighs the speaker's and the listeners' interests. Even Justice Marshall, joined by (among others) Justice Brennan, acknowledged this, and cited as an example a case in which a "clerical employee in [a] sheriff's office [was] discharged for stating on television" that he was a sheriff's employee and a KKK recruiter. I'm no fan of this vague balancing test; but I don't know what better rule there can be, and I doubt that the right rule should require government employers to categorically tolerate employee speech that deeply undermines coworker morale and public confidence in the agency.

As to tolerance, I agree the government-as-sovereign (as opposed to as employer) must be tolerant of political differences. But I don't think that for private individuals and businesses such tolerance should be equated to racial and religious tolerance. If an acquaintance refuses to invite blacks or Catholics to his home, we would rightly condemn him (though we wouldn't try to outlaw such conduct). But I wouldn't similarly condemn someone who refuses to invite Nazis to his home. Political beliefs reflect one's moral character. People who hold evil beliefs shouldn't be imprisoned for them, but they may and sometimes should be socially shunned.

This also applies outside personal life. Not wanting to be served dinner by a waiter who's black is reprehensible. Not wanting to be served dinner by a waiter who's a Klansman, and who likely hates you or your friends because you're black is, I think, understandable and proper. Decent magazine publishers ought not refuse to carry columns by Asians or by Jews. But they may properly refuse to carry not just Nazi propaganda, but also seemingly non-Nazi op-eds by Nazis. The publishers are under no moral obligation, and should be under no legal obligation, to help buttress Nazi commentators' public standing.

Finally, my crystal ball is at the cleaners this week, so I can't say what would happen if we had four 9/11s in the next four months. I hope we won't reply with hostility to all Muslim-Americans; I'm sure the great majority of Muslim-Americans would be repulsed by the butchery of 12,000 innocent people.

But I do expect that many people will want nothing to do with those who speak out praising the murders. Those speakers should be legally protected against violence, but I don't think they should be entitled to avoid shunning. "[A] less polarized society" is generally good and indeed "not 'every difference of opinion is a difference of principle.'" But the differences between "deliberately killing innocents is good" and "deliberately killing innocents is bad" are pretty deep differences of moral principle; and we should be polarized against the view that it's good for terrorists to kill 12,000 of our fellow countrymen.

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Stone: 3/24/05, 08:40 AM
These are really excellent points, Eugene. They help explain why we treat private discrimination on the basis of race, religion, and gender differently than private discrimination on the basis of political viewpoint.

As I understand it, the argument is that we have determined that race, religion, and gender are morally irrelevant characteristics, whereas political viewpoint is not a morally irrelevant characteristic. Although the government may not suppress particular points of view merely because most people abhor them, that rule is not premised on a judgment that all viewpoints are morally equal. Rather, it has to do with systemic judgments about ensuring a vibrant public debate. But because we haven't determined that all viewpoints are morally equally, we don't feel a need to compel private actors to behave as if they are, if they think otherwise. I think you have the core of an interesting article here.

This still leaves the problem of McCarthyism, however. Even if I concede arguendo that private discrimination on the basis of viewpoint need not be equated with private discrimination on the basis of race, religion, or gender, we have to be concerned about private discrimination that begins seriously to threaten the marketplace of ideas. The point isn't that such private discrimination would be unconstitutional, but that the government should step in and prohibit such discrimination through legislation if it begins to warp public debate.

For example, suppose that in the South in the 1950s and 1960s, pro-segregation businesses refused to employ any person who was suspected of supporting civil rights, with the consequence that citizens were pervasively chilled in their willingness to express such views in any way. Would it then be sensible for the federal government to enact legislation making such discrimination unlawful? Is there a point, in your view, when the concern with public debate trumps the preference for allowing private discrimination? In that hypothetical, would you support such legislation?

Then, there's the question of the present. In a recent piece in Commentary, Andrew McCarthy calls for the suppression of Free Speech for Terrorists. He argues: "The point of a market is a free exchange. Terrorism perverts the very concept: seeking to compel acceptance not by persuasion but by fear. . . . Why then should government hesitate . . . to use every legal tool in its arsenal, including criminal prosecution, to convey in the strongest terms that the advocacy of terrorism in this day and age is entitled to no First Amendment protection?" Do you agree?

Volokh: 3/24/05, 02:18 PM
On balance, I think the costs of such a new layer of employment law—a law that, as I've said, would protect Klansmen as well as civil rights activists—would exceed the benefits. Still, who knows? Some states (California, for instance, and probably New York) do ban employers for punishing employees for off-the-job political activity. The statutes are rarely litigated; I'm not sure whether that's because employers rarely fire people based on politics, because the laws deter such firings, or because many lawyers just don't know about them. I think these statutes generally do little good and a little harm, but it's hard to tell.

But let me shift to a different topic: You've recently analogized to McCarthyism John Ashcroft's statement that "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies." You likewise condemned Dick Cheney for "use of the fear card" in his "assertion that a vote for John Kerry would endanger the nation"—"part of a cynical campaign to frighten and confound the American people," you called it.

What do you think of this statement: "Our nation has felt the lash of terrorism. . . . We can't let [a certain group] turn America into a safe house for terrorists. Congress should get back on track and send me tough legislation that cracks down on terrorism. It should listen to the cries of the victims and the hopes of our children, not the back-alley whispers of the [group]." That was said by Bill Clinton and the condemned group was the "gun lobby." McCarthyism?

Or what about this: "Pacifism is objectively pro-[our-enemies]. This is elementary common sense. If you hamper the war effort on one side, you automatically help out that of the other." That was said by George Orwell during World War II. And, finally, the statement, which seems like the flip side of Cheney's, that "we are less safe because [Bush] is president." That's from House Minority Leader Nancy Pelosi.

These statements are warnings that certain actions (regardless of intentions) may help lead to bad results. They do exploit fear, but fear is often justified. Many groups try to influence voters by making them afraid of environmental catastrophe, crime, gun violence, terrorism, war, racism, or suppression of civil rights, and by arguing that their rivals will leave the nation vulnerable to those fearful dangers. Some such statements may be factually mistaken, but I would think that they're important parts of public debate about who should be elected, what should be done, and what people should say.

Should all these statements be condemned as "McCarthyism"? Should none? If you think some should be and some shouldn't, how would you distinguish the McCarthyist statements from the permissible ones?

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Stone: 3/25/05, 08:47 AM
That's a great question, Eugene. We need to be careful not to cheapen the phrase "McCarthyism." Not every effort to frighten the public should be characterized as "McCarthyism." Some efforts to frighten the public are well-grounded in truth. Some may be based on erroneous, but honestly-held assumptions. Some may be intentionally
manipulative programs to generate an exaggerated sense of fear in the public in order to score partisan political gain. In my view, only the last category deserves the label "McCarthyism." In addition, to deserve this label, the effort must be government-inspired, concerted, and pervasive, it must accuse people of disloyalty, and it must have a substantial chilling effect on the willingness of individual citizens to criticize the government. If all those conditions are satisfied, we can appropriately use the phrase McCarthyism. (I recognize, of course, that this is just my view. I haven't checked to see what the dictionary says.)

Comments like those of John Ashcroft capture perfectly the mindset of McCarthyism. Although it would a wild-eyed exaggeration to say that we are currently in an era of McCarthyism, it's not at all unreasonable to suggest that we are in peril of slipping into such a period. The tone and tenor of the Bush administration make it the perfect candidate to launch a campaign of repression. Its closed-mindedness, self-righteousness, disregard for the separation of powers and the rule of law, lack of interest in debate, na´ve assertions of certainty, simplistic invocations of faith, and confident divisions of complexity into "good" and "evil" should make every American anxious.

Now, you may respond that I am attempting to drum up a state of fear in a way that precisely mimics McCarthyism. But, as I said above, not every effort to motivate the public with invocations of fear deserves that label. My argument does not meet any of the conditions for McCarthyism (unless you think I am being intentionally manipulative in order to score partisan political gain). In my judgment, the real danger of the crew in the White House and their supporters is that they do not respect disagreement, they do not respect the norms of healthy public debate, and they are prepared to go far outside the rules of politics to achieve their goals. They close deportation proceedings, disdain international law, hold American citizens in indefinite detention, attack the filibuster when it stands in their way, and hire members of the press to deceive the public. Do you really think they're incapable of much greater repression if the opportunity presents itself? Watch your back, Eugene. Watch your back.

Volokh: 3/25/05, 01:00 PM
Whoa! That's a lot of political analysis there—far outside my area of expertise. I can't speak as a scholar on all the supposed moral and political sins of the Bush Administration, and wouldn't have the space if I could.

It does sound, though, like the definition of "McCarthyism" that's being suggested is mighty convenient for its users and pretty inconvenient for skeptical but interested listeners. After all, under this definition exactly the same criticisms—with exactly the same level of substantive merit—would be "McCarthyism" when used by one side and quite proper when used by the other.

Cheney says that voting for Kerry would endanger the nation. That's McCarthyism, because it comes from this bad administration. Nancy Pelosi says that voting for Bush would endanger the nation. That's just fine, if you think Democrats are open-minded, unself-righteous (except, of course, when they're harshly deriding the Bush Administration), attentive to separation of powers and the rule of law, interested in debate, and sophisticated and introspective, with complex views of faith and suitable appreciation for gray areas. Oh, and also respectful of international law and filibusters.

Such use of the term "McCarthyism," which seems to presuppose what it's trying to show—which is that one's targets are bad people—isn't terribly useful for sober analysis. Wouldn't it have been more profitable to instead discuss, for instance, whether voting for Bush or Kerry would indeed endanger the nation? That was actually a pretty important question a few months ago.

As best I can tell, public debate about the Administration, the war, civil liberties, and the best ways to fight terrorism has been quite vibrant. If there's a "substantial chilling effect on the willingness of individual citizens to criticize the government," I haven't noticed it. The 2004 Democratic election campaign, for instance, didn't seem to be unduly obsequious to the Bush Administration. Nor do I see much evidence of "an exaggerated sense of fear in the public," or even attempts to create such a fear. The world is a dangerous place and I have no reason to think that people are any more fearful of terrorism than they ought to be.

So I think free speech in America is pretty healthy. There are some exceptions; I have long, for instance, criticized hostile environment harassment law, a vague, broad, and viewpoint-based set of speech restrictions. Likewise, some media responses to supposedly unpatriotic speech have indeed been misplaced; Bill Maher, for example, got a bum deal. And, sure, many people in many places—government, universities, the media—are smug and closed-minded, and too often try to name-call people into submission. That ought to be fought. Still, things today are pretty good.

And tomorrow? No-one can tell for sure, but fortunately there are plenty of people and organizations who will fight future attempts at repression, whether from the left or from the right. Geof, I know you'll be one of them, and I'm very glad about that.

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