Free Speech: More a Means than an End

Mozilla’s selection of Brendan Eich for CEO on March 24 prompted widespread outrage because of a $1,000 donation he made to the Prop 8 campaign in 2008. Though the tech world had long condemned Eich’s donation to the since-overturned anti-gay marriage ballot initiative, his promotion reinvigorated the criticism that eventually pressured him to resign.

Conor Friedersdorf, Andrew Sullivan, and a whole host of other journalists and bloggers typically supportive of gay rights have recently denounced Eich’s “forced resignation.” Other members of the business community protest the anti-Eich movement because the idea that “one’s politics is one’s own business [has] been the rule in American business for a very long time.” Friedersdorf worries that calls for Eich’s resignation will have “a chilling effect on political speech and civic participation.” Sullivan goes even farther and writes, “When people’s lives and careers are subject to litmus tests, and fired if they do not publicly renounce what may well be their sincere conviction, we have crossed a line. This is McCarthyism applied by civil actors. This is the definition of intolerance.”

Some of these commentators’ concerns are understandable, but their arguments paint an inaccurate picture of the effects of Prop 8, confuse the distinction between private and public views, and mistakenly equate two very different types of political speech and behavior.

Friedersdorf asserts that “no one had any reason to worry that Eich…would do anything that would negatively affect gay Mozilla employees,” while Sullivan contends, “There is not a scintilla of evidence that [Eich] has ever discriminated against a single gay person at Mozilla.” Both writers cite Eich’s vaguely-worded inclusivity commitments as evidence for their claims without recognizing that the entire complaint against Eich is based on his direct contribution to legalized discrimination against gay people in California. By way of his donation in support of Prop 8, he has already “negatively affect[ed]” every “single gay person at Mozilla.” Given Eich’s refusal to denounce the apartheid system of marriage he helped enact into law, it would be illogical to expect him to behave differently in the future.

Relatedly, commentators have bought Eich’s argument that his beliefs are personal and private. While the gay community would be significantly better off were that argument valid, it’s unfortunately completely false. Beliefs become public when they take the form of activism, votes, and donations that lead to laws that have consequences for other people. There’s nothing at all private about a $1,000 donation to a campaign that helped deny gay people equal application of the law for over four years.

Most alarming to Friedersdorf and Sullivan is their perception of the free speech implications of Mozilla’s behavior. Friedersdorf writes that Eich’s resignation sends the message “that if you want to get ahead at Mozilla, you best say nothing about any controversial political issue.” Sullivan similarly opines that “[w]hat we have here is a social pressure to keep your beliefs deeply private for fear of retribution. We are enforcing another sort of closet on others.” In addition to Sullivan’s erroneous (and offensive) suggestion that there’s an equivalence “between the oppression faced by the queer community and [the] intolerance [Prop 8 supporters] feel as ‘out’ bigots,” both writers also use a problematic analogy. Sullivan compares Mozilla’s behavior to “a socially conservative private entity fir[ing] someone because they discovered he had donated against Prop 8” and Friedersdorf similarly writes:

There is very likely hypocrisy at work too. Does anyone doubt that had a business fired a CEO six years ago for making a political donation against Prop 8, liberals silent during this controversy (or supportive of the resignation) would’ve argued that contributions have nothing to do with a CEO’s ability to do his job? They’d have called that firing an illiberal outrage, but today they’re averse to vocally disagreeing with allies.

For free speech purists, Friedersdorf and Sullivan make a good point. If all speech is considered equal and free speech is the most important end for us to consider, the type of reasoning used to oust Eich would be analogous to the reasoning used to fire a CEO who campaigned against Prop 8. However, the Supreme Court has long held that other considerations matter more than free speech in certain circumstances. While Sullivan is right that we should be able to “live and work alongside people with whom we deeply disagree,” there is a major difference between legitimate, intellectually honest disagreements and speech, activism, votes, and/or donations that oppress people. The right to speak freely applies differently to the different sides of the gay marriage debate for the same reason that it’s inaccurate to call Aamer Rahman a reverse racist: the power dynamic matters a great deal. Free speech is more important as a means to protect the powerless from being silenced and oppressed than it is as an end in and of itself. Arguments like Friedersdorf’s and Sullivan’s have been used in the past to justify a neo-Nazi intimidation march through a town inhabited by Holocaust survivors; completely free speech is the wrong cause to defend when it undermines a more important purpose.

Protecting the powerless is probably harder to legislate and enforce than free speech purity. Regardless, our priorities are severely warped when we consider Brendan Eich’s right to a discriminatory political donation ahead of gay individuals’ right to equal benefit of the law.

Update: A version of this article ran on The Left Hook on Wednesday, April 9.

12 Comments

Filed under LGBTQ Issues

12 responses to “Free Speech: More a Means than an End

  1. I’ve been thinking about this issue a lot, and my gut is to agree with you: I do think that Prop 8 support is blatant animus-based discrimination, which distinguishes it from free speech or “private politics.” But accepting that argument leads to a few other questions that I’m still struggling with, and I’d be interested in your thoughts:

    1) One of the reasons that Eich’s donation caused such an uproar is that he happens to be the CEO of a newer, hip company that has a customer base composed mostly of Internet-savvy young people. But over 30,000 people–many of whom are employed in corporate leadership positions–donated to Prop 8. Should they also lose their jobs? (There’s a piece on Slate about this–a bit snarky, but it’s a fair point: http://www.slate.com/articles/news_and_politics/frame_game/2014/04/brendan_eich_quits_mozilla_let_s_purge_all_the_antigay_donors_to_prop_8.2.html)

    2) How do we deal with politicians? Obama–among many others–shared Eich’s view in 2008, though he has of course publicly changed his mind. Is that enough? There’s some messy precedent with this. For instance, Senator Robert Byrd was a KKK member and personally filibustered the Civil Rights Act of 1964 for 14 hours, but later established himself as a powerful (non-racist) voice in the Democratic party. Since politicians actually are making laws, should they be held to a different standard?

    (For the record, I’ve thought that Obama received too much credit for his same-sex marriage support for quite awhile: http://skepticspolitics.wordpress.com/2012/05/09/hold-the-applause-for-obama/)

    3) This relates to the previous question: if Eich said he had changed his mind, should he have been able to keep his job?

    • Hey Jacob,

      You raise some awesome questions. I don’t think there’s a definitive answer to them and would welcome further conversation, but my current thinking stems from the perspective that I generally feel leads to the most moral conclusions: I imagine analogous issues in the middle or high school setting.

      Here’s a hypothetical: suppose I had a smart student (let’s call him Brendan) who assumed a leadership role in my classroom. I later discovered that, in his first year at the school, this student had made posters in support of a student council policy that designated separate tables in the cafeteria for LGBT students and straight students. That policy had been recently discontinued by school administration, but their rationale was that the student council couldn’t make school policy, not that the policy was necessarily wrong. Many students in my class were upset that Brendan occupied a leadership role and wanted him removed from the position. Other students in my class and in other classes also made posters in support of the policy and helped it pass at the relevant student council meeting. What would be the best course of action in this scenario?

      I would argue that it would be the responsibility of the adults on campus to think first of the needs of our LGBT students. My actions would need to ensure a safe environment for them. However, my younger sister has also convinced me of the value of restorative justice. I’m not familiar enough with restorative justice practices to know exactly what it would look like in this scenario (Hannah, please feel free to chime in when you read this), but I imagine it would involve some form of helping Brendan take responsibility for the harm he caused to the gay students at the school, asking for those students’ forgiveness, and co-designing a plan to actively fight homophobia at the school. I wouldn’t be opposed to Brendan maintaining his leadership position if he followed through and was genuine with these commitments, and I doubt his gay classmates would, either. I’d feel similarly about the other students who made the discriminatory posters. If a student was unwilling or unable to make amends for his or her actions, I think I would have to seriously consider more traditional consequences. Not to do so would create an unsafe learning space for my LGBT students.

      I think this hypothetical is most relevant to the first and third questions you posed. I don’t think Eich saying he changed his mind would be enough – I think he’d need to truly make up for the harm he helped cause – but I would have been okay with him staying if he really began to atone for his donation. I’d feel similarly about the other donors – it is unacceptable to support unequal application of the law for gay and straight people (just as it is unacceptable to support Jim Crow laws or a separate legal system for women or Jews), but the community would be significantly better off if people with previously discriminatory beliefs recanted than if they were forced out. In the case of Eich, Mozilla gave him that chance and he declined to take it. The responsibility of other organizations in similar cases would then be to protect the discriminated-against group (gay people) at the expense of the discriminating parties (Prop 8 donors), so Mozilla seems to have behaved appropriately in this situation.

      On your second question, I think you’re spot on with your analysis of Obama’s stance on gay marriage. I will give him credit for saying something positive, but I’m certainly not of the opinion that his “evolution” was anything other than political calculus and agree that it’s disingenuous for him to continue to claim that gay marriage is a state issue. I would still recommend the restorative justice approach for politicians if possible (I don’t know a ton about Byrd, but it sounds like the desired transformation happened there), but I think it’s reasonable to suggest that they should have a shorter leash than other people given their direct impact on policy.

      Let me know your thoughts!

      Ben

  2. I like the analogy of a school setting. Your argument reminds me of John Rawls’ “A Theory of Justice” (definitely check it out if you’re not familiar with it–it’s right up your alley). I agree that if you are attacking the basic rights of a group of a people, it can’t just be viewed as free speech.

    What still concerns me, though, is the practical aspect of this. 30,000 people gave money to Prop 8; many thousands more donated to similar initiatives in other states. Recanting previous statements or engaging in some sort of restorative justice sounds great in theory, but I still see a couple of issues.

    1) Is it really credible when people say they “changed their mind”? It seems to me that such blatant bigotry comes from something deeper and more visceral than another political issue. I buy it if someone changes their mind about, say, fiscal policy because opinions can be based on logic and rational argument. But can the same be said about a view that is rooted in an ideology of hate and disrespect?

    2) To what extent does restorative justice actually help the aggrieved class of people? Obviously it can vary from person to person, but I wouldn’t say it would be unreasonable for a gay person to not want to work for a CEO who donated to Prop 8–even if their view had changed. Given that, is it even possible for someone like Eich to “right his wrongs”? And if not, isn’t a “purge” the only option?

    Thanks for starting this discussion. Tricky stuff.

    Jacob

    • Thanks for continuing the discussion – your questions are very thought-provoking (and I’d love to hear other readers’ thoughts on them as well).

      I think it’s possible for a person to change his or her mind on gay marriage. Some people supported Prop 8 because they honestly didn’t know the facts; the main interests behind Prop 8 ran an incredibly successful misinformation campaign. I imagine there are a number of people who were initially deceived into believing that Prop 8 was about classroom instruction and religious practices, and that some of them now know it was about legal rights and have changed their support as a result. I also think the rapid change in public opinion on gay rights is evidence that people can change – sometimes it takes a gay family member, friend, or media figure, and sometimes all it takes is a reminder that gay rights are civil rights. That said, I wouldn’t take people at their word that they’ve changed their minds unless their actions back up that statement. What we do is usually more telling than what we say.

      On the effects of restorative justice for victims: I need to do more research, but I’m hoping another reader (quite possibly my sister) can shed some light on this question. Here’s a short synopsis that speaks to my current understanding (from http://www.witnessjustice.org/justicesystems/restorative_justice.cfm):

      “Conventional justice systems (sometimes referred to as “retributive justice”) ask three basic questions:
      • What laws have been broken?
      • Who broke the laws?
      • How shall the lawbreaker be punished?
      The fundamental questions of restorative justice, on the other hand, are:
      • Who has been harmed?
      • How can these harms be addressed or repaired?
      • Who should address or repair the harms?
      Too often, victims feel excluded from the traditional adjudication process. Many victims report feeling that the criminal justice process focuses on the state itself as the injured party, as though victimization is not personal. But violent trauma survivors know that the effects of victimization are deeply personal, and many have found that restorative justice can provide them with a more personal sense of healing and justice.”

      Is it reasonable for a gay person to refuse to forgive someone who donated to Prop 8 even after that person attempted to make amends? Absolutely. Forgiveness is a concept I often struggle with myself. However, I think that my failures to forgive usually result in worse outcomes. I also hope that, assuming that I’m willing to make amends, others will be willing to forgive me when I make a mistake (though I hope I never make one as large as helping to deprive a group of people of equal legal status). My guess and hope is that an effective approach to restorative justice will alleviate most of the concern you expressed.

      Thanks again for the great comments.

      Ben

  3. Ruth

    I’m going to turn the school situation around. What if students made posters against persecuting LGBT students and you had students who did want the unfair policy in place? While I agree that we need to ensure the safety of the LGBT students, we need to consider ALL students, not just the ones who are on the same side of a moral issue that we are. Making a judgement call about those students who do NOT agree with marriage equality or cafeteria seating equality sinks us to the same level as those making judgements about the LGBT students.

    What I take issue with is that what one does in their PERSONAL life should not interfere with their professional life. I’m a teacher and held to a high moral standard. I am expected to dress modestly and be very politically correct in class. What if I am a Creationist? Does that mean I shouldn’t be allowed to teach? What if I wear skimpy clothing out on the town? What if I don’t support marriage equality? As long as my personal beliefs are not leaking into and negatively affecting my job performance, they should have nothing to do with my job.

    Calling for Eich’s resignation based on his views on marriage equality is absolutely unfair. It’s akin to calling for the resignation of an openly homosexual individual. If Eich was being discriminatory in his JOB as the CEO, I’d be a part of the lynch mob. However, nothing I’ve read about this case suggests that there was any inappropriate behavior as CEO of Mozilla.

    One’s private life is private and should not negatively impact their professional life unless those beliefs negatively affect their job performance. To put it very simplistically, we can’t censure people for being bigots, only for being discriminatory. Supporting Prop 8 was discriminatory, but the donation was made with private funds, so it seems really perverse to call for his resignation just because his opinion is unpopular.

    Note: Unpopular is a very wishy washy word for this case as marriage should be a basic human right, but I hope my message is clear.

    • Hey Ruth,

      I tried to address those hypotheticals in my original post, but I’ll reiterate my main arguments. Your concerns mirror both Friedersdorf’s and Sullivan’s and they miss both the distinction between private beliefs and public action and the difference between speech that doesn’t directly affect anyone else and “speech” that deprives people of equal legal status.

      The following sentences are totally inaccurate: “Making a judgment call about those students who do NOT agree with marriage equality or cafeteria seating equality sinks us to the same level as those making judgments about the LGBT students…Calling for Eich’s resignation based on his views on marriage equality is absolutely unfair. It’s akin to calling for the resignation of an openly homosexual individual.” I wrote an op-ed for The Stanford Daily about this claim in 2009 (https://34justice.files.wordpress.com/2014/03/stanford-daily-op-ed-january-2009.pdf) where I explain the inaccuracy in more detail, but I think the following excerpt conveys my basic point:

      “One group is defined by sexual orientation, a personal characteristic they force on no one. The other group, the anti-gay marriage faction, is defined by a public stance used to deprive gays of equal treatment under the law and maintain apartheid marriage in California…Calling a Prop 8 supporter a bigot is neither narrow-minded nor cruel. It’s the truth. I’d call a supporter of Jim Crow laws, unequal pay for women and the Nazis a racist, sexist and anti-Semite, respectively. These labels, far from being prejudicial, all describe an evaluation of character based on someone’s behavior.”

      The examples you provide have no parallel to a donation for Prop 8. Believing in creationism and wearing skimpy clothes out on the town certainly don’t deprive some of your students of rights to which others are entitled. And even believing that gay people don’t deserve equal legal rights wouldn’t disqualify you from teaching if that belief was truly private and therefore not going to affect the emotional safety of some of your most at-risk students. A vocal gay rights opponent, on the other hand, would be unfit to teach students. Such a person’s public actions would create an unsafe learning environment for any student struggling with his or her sexuality. Would you let an unabashed supporter of secondary legal status for blacks, Latinos, women, or any other member of a typically oppressed group in American society teach children? I certainly hope not, and I’d argue that anyone who would should do some serious rethinking of priorities.

      I appreciate the comment, but I think it’s really important not to equate legitimate opinions and actual personal beliefs with bigoted speech that oppresses people.

  4. Ruth

    I still stand by the accuracies of my statements. A statement like “are totally inaccurate” when this really is an opinion piece seems to have some fallacies of pathos. And again, I disagree with your core argument. My main point here is that we cannot fault people for their beliefs, only for their actions. We cannot fault people for actions in their personal lives that don’t affect their professional lives. Should we go through the list of all the donors to Prop 8 and call for their resignations as well? No, because they have a right to their opinions and beliefs just as much as we do. Their beliefs DO lead to oppression, but it we tell them to shut up and sit down we ARE sinking to their level. There are two sides to every argument and everyone is entitled to their opinion.

    “I think it’s really important not to equate legitimate opinions and actual personal beliefs with bigoted speech that oppresses people.” Our discourse could be seen as the exact same thing. Eich can be as bigoted and oppressive in his personal life as he sees fit, that’s his right as an American. Calling for his resignation for his personal beliefs, however bigoted they may be, is unfair UNLESS he took action as the CEO that reflected those beliefs.

    “I certainly hope not, and I’d argue that anyone who would should do some serious rethinking of priorities.” That’s seems to be a very strong and rather closed minded statement. There’s a big difference between being a vocal opponent and making campaign donations. There’s also a big difference between teaching and being the CEO of a company full of adults.

    I could make a $1,000 in support of Prop 8, teach openly gay students, and still be effective at my job. Those students might not feel great about it, but I might not feel great about them being gay. As long as I’m not discriminating in my class, my beliefs are not a problem. Your school analogy also looses some traction when one stops to consider the fact that Mozilla employees are adults. As adults we know some of who we are isn’t pleasant to others. Some people don’t like me because I’m white or because I’m a woman. They have the right to think that and to contribute to causes that back up their beliefs. As long as they don’t do anything directly discriminatory in their professional life towards me, they are absolutely entitled to their opinion.

    We could even take this a step further. What if I eat at Chik-fil-a? They have a public anti-gay agenda that I would be funding through purchasing food there. Should I be asked to resign? I’m not saying this is the most valid example, just food for thought.

    I think we’re just going to need to agree to disagree on this one.

    • Everything anyone writes is technically an opinion piece, but my claim that a donation to Prop 8 is a public action that affected other people’s legal status is a fact that follows from the definition of “public” and “action” and from the law. You haven’t presented any evidence that refutes that fact. When one’s opinion doesn’t match the reality of the situation, it is by definition inaccurate. Imagine, for example, that someone holds the opinion that 2 + 2 = 5. That person is certainly welcome to hold that belief, but it doesn’t change the fact that the belief is wrong. To assert that Eich’s resignation was based on his personal beliefs is equally inaccurate.

      It’s also inaccurate to suggest that there are two equivalent sides to every argument. There is often more evidence on one side of an issue in disagreements. For example, some people deny that climate change is occurring, but there’s considerably more evidence that it is, and the two “sides” are therefore unequal: the intellectually honest position is to acknowledge climate change. Likewise, there are not two equivalent sides to the gay marriage debate. It is a fact that one group, people who believe in gay marriage, did not deprive other people of equal legal status. It is also a fact that the other group, the group that opposes gay marriage, did deprive people of equal legal status. Pro-gay sentiments did not lead to discrimination against Californians in 2008 and anti-gay beliefs did. That’s a factual statement and a clear difference between the two “sides” in this debate (and I’m surprised you don’t agree, since you called racist and anti-gay arguments “invalid” in your comment on my last post). I take issue with the phrase “agree to disagree” because it implies an equivalence in evidence on both “sides” of an argument when an equivalence might not actually exist.

      I do agree with you that adults are different than kids. My analogy, as you recognize, does not perfectly mirror the Eich situation. I instead intended it as a window into the rationale behind the opinion part of my piece. That opinion is that the “right” of privileged individuals to behave as they wish is significantly less important than the right of less privileged individuals to live a life free from oppression. I again find it hard to believe, based on your comment on my last piece, that you and I have significantly different values, which is a large part of why I’m having trouble understanding the root of your disagreement. Would you really send your kids to school with teachers who voted to institutionalize explicit forms of sexism, racism, or other forms of discrimination? Would you really contend that the “right” of a teacher (or boss) to make racist donations trumps the right of a black student (or employee) to an emotionally safe learning (or working) environment? You can call my incredulity “close-minded” if you’d like, but I’d call it a thoroughly contemplated ethical position.

      I look forward to continuing the conversation – it’s a perfect topic for our return to bowling in a week and a half ☺.

  5. Ruth

    I’d like to point out that your “evidence” as you call it are also opinion pieces. It is a FACT that all people should have equal rights under the law. It is a FACT that marriage inequality is unconstitutional. It is not a fact that Eich’s donation to Prop 8 made him inept at his job. The man is incredibly qualified and I maintain that his personal beliefs and actions should not have professional implications.

    I also did not see a response to the idea of making everyone on the list of Prop 8 donors resign, but I may have missed it.

    “To assert that Eich’s resignation was based on his personal beliefs is equally inaccurate.” Okay, this is an interpretation issue. I define beliefs as you define actions. I still, however, maintain that one’s personal actions should not negatively affect their careers.

    If the teacher was a good teacher, was not discriminating against students at school, and their personal beliefs/actions did not negatively impact their job performance, yes I absolutely would.

    I’m really surprised that you don’t seem to be considering the flip side of this argument. Would Eich be asked to resign for donating to the Stop H8 campaign? Would he be championed for doing it? No, it’s just because this is a hot button issue that he was pressured into doing so.

    There is no perfect world in which everyone feels completely safe at work or at school. I hope to live in a utopia one day, but that’s not reality. I agree with you that every argument does not have equal sides. The marriage equality argument does not have equal sides. However, the argument for or against Eich’s resignation does as the sides are based on opinions as well as evidence.

    We need to sit down and have coffee or something and finish this otherwise we’ll get labeled “Chatty Kathy’s” again and get yelled at by our teammates 😛 Love this kind of discourse!

    • Three quick questions:

      1) What evidence that I cited are you calling an opinion? I don’t see anything from my argument that falls into that category.

      2) What definitions of “action” and “belief” are you using? No commonly used definition categorizes a donation that deprives people of rights as a “belief.”

      3) Just to clarify your position with a concrete hypothetical: A teacher donates to a proposition that legalizes unequal pay for men and women. The teacher teaches female students who feel, because the teacher contributed to this proposition, unsafe in the teacher’s classroom. You believe this teacher should be allowed to continue teaching these students?

      Also, I’d like to point out that I’ve been “considering the flip side of this argument” in my post and every single one of my responses. I have already directly addressed the following question with my central argument: “Would Eich be asked to resign for donating to the Stop H8 campaign?” I’ll leave it to other readers to decide whether I’ve made a compelling case.

  6. Joe

    So it’s illegal to discriminate against gays but ok to force someone to resign because they support prop 8? I love how gays demand tolerance but have none for anybody that doesn’t share their views

    • Hi Joe,

      I’ve already addressed why your statement draws a false equivalence between two very different behaviors in my post, a piece on Prop 8 I wrote several years ago (https://34justice.files.wordpress.com/2014/03/stanford-daily-op-ed-january-2009.pdf), and in the comments. Enforcing consequences when people discriminate isn’t intolerant – it’s an appropriate reaction to an attempt to deprive other people of rights. I’ve still never heard a legitimate argument about how an unequal application of the law to a group of people who share an identity characteristic (Prop 8) is equivalent to firing a CEO who supported legalized discrimination.

      Ben

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