Comedian Roseanne ignited social media with her tweet about an Obama adviser. In response, ABC cancelled her rebooted show. In seemingly unconnected news, the NFL has decided that players will be fined if players take a knee during the national anthem. While this might appear an odd claim, they are related in important ways. One similarity is the matter of free expression.
While the Bill of Rights does provide some degree of protection for the freedom of speech in the First Amendment, this protection is only against congress. The amendment does not protect citizens from limits on the freedom of speech imposed by their employers. In the case of Roseanne’s racist tweet, ABC had the legal right to cancel her show (presumably there was no clause in her contract forbidding termination for racist tweets). In the case of NFL, it has the legal right to forbid players to protest and can back this up with fines and even termination of employment.
There are, obviously enough, differences between the two situations. Roseanne got in trouble because of a racist tweet. ABC was, one would infer, worried about the consequences to their brand if they allowed her show to continue. As such, she was fired because her employer thinks that enough of ABC’s viewers would be offended by the racism to harm their bottom line. Then again, ABC might have been acting from a moral opposition to racism.
In the case of the NFL, the concern is that the free expression of the players in protest against injustice and racism will anger enough of the NFL fanbase to impact their bottom line. That is, the concern is that the anti-protest nationalism of a key segment of their fans will impact their profits. As such, they have acted to restrict the liberty of the players to appease the avowed lovers of liberty. As with ABC, it could be claimed that the NFL was acting from moral concerns about the wrongness of protesting injustice and racism. It is also worth considering that some of the fanbase are fine with protests; they just do not want their entertainment interrupted by such protests.
Since the freedom of speech is regarded as so important that it is protected from the federal government by the very first amendment, there is the moral concern about employers restricting this freedom. Looked at one way, employers have a power that exceeds that of the state: they are free to restrict the freedom of speech of their employees to a degree that might please a dictator.
One sensible reply to this concern is that employees are generally free to quit their jobs if they find the restriction on their liberty too onerous. As such, unlike with a state dictatorship, leaving the tyranny of the employer is easy. While this is true, there is the fact that most people cannot escape employment—that is, people need to work to do more than just survive. As such, the tyranny of employers is quite a challenge to escape. For most people, if they have a job they must take care in their speech, lest they be punished or fired. This, of course, applies across the political spectrum—although the left tends to have a broader range of what they consider unacceptable speech.
It could be countered that people are only limited in their speech by their employer when they are on the job—they are otherwise free to engage in expression. While this might hold in some cases, it seems to be generally untrue. After all, Roseanne was fired for a tweet made on her own time. Employers can, of course, punish or fire employees for speech that occurs outside of their work hours. As such, the control of the employer extends around the clock.
People on the political right, such as Roseanne seems to be, must worry that their speech will create a reaction from their left that could cost them their job. People on the left must also worry that their speech will cause a reaction that could cost them their job. As such, while the United States has freedom of speech (albeit with many limitations) and no general state mechanism of oppressing this right, the employment system and the population itself serve to create a climate of fear that effectively limits freedom of expression. This seems to be at least as morally problematic as state suppression of free speech.
It could be countered that this system, while suffering from some flaws, works reasonably well. That is, it tends to punish people who make racist, sexist or otherwise morally problematic remarks. Some might point to Roseanne and say that her downfall is a feature and not a bug—it has punished an alleged racist and taken away a platform for her expression. However, the same system is also taking aim at the NFL players who want to protest racism and injustice. But, just perhaps, this is also a feature—the system can be seen as bipartisan in that it can be used to threaten people all across the political spectrum and to try to coerce folks left and right into silence.
Since I value the freedom of expression, even when exercised by people I disagree with, I find this system morally unacceptable—as noted above, it is an engine of suppression that restricts a fundamental right. The fact that the right is not being restricted primarily by the state is largely irrelevant—what matters is that the right is being restricted regardless of the agents of restriction.
I think you may be overthinking this. I don’t believe that it’s appropriate to make any kind of distinction based on the content of what they say – in other words, you can’t side with the NFL players because they are protesting against racism, or against Roseanne because her tweets were racist or offensive. THAT would be a restriction on free speech, and would begin a slippery slope that would entail defining what is “good” speech and what is “bad” speech.
You are quite right when you say, in both issues, that the decision to impose consequences was based on the employer’s desire to protect the bottom line. When the actions or expressions of an employee begin to negatively affect that bottom line, it becomes a simple case of conflicting “rights”. No one is punishing anyone. No one is acting dictatorially. In both cases, ABC and the NFL are simply acting in their own best interest, which may or may not include supporting the expression of their employees.
I think we would both agree that there are some limits to free expression; but you are right that generally the content of speech that is not a direct threat, etc. is not relevant to the right. In other words, freedom of expression covers speech we love and speech we loath.
In terms of limits, I would infer you would not be fine with the free speech of a person screaming about a fictional bomb during the middle of your flight or the free speech of someone following you in public places and calmly making death threats against you (but never acting on them).
With regard to the person screaming about the bomb or the death threats – those are crimes, and could hardly be regarded as “expression”.
There is a lot of latitude in “Freedom of Expression”, but a line is drawn somewhere when the expression is targeted towards and individual or group in such a way that it causes harm. For example, we have laws against libel and slander in this country. I might view it as a constitutionally protected right to publicly write or speak out about a person or company, but if my expression causes them harm, we will end up in court. As I said in my first answer, we often get to the point where our own rights, as we see and express them, are in conflict with those of another.
With freedom comes responsibility – and one of those responsibilities is to be aware of and to accept the potential consequences of our freedom of expression. So to the point – if I start posting racist or hateful messages on Facebook or blogs, I am perfectly free to do so – but I must also accept the possibility that my employer finds his association with me to be damaging, and may wish to distance himself from the image I present.
One might say that one person’s crime is another’s expression. And vice versa.
Can someone explain exactly what was racist about Roseanne’s tweet? I’m not even sure what it meant, or what she was trying to say.
Comparing black people to apes is a stock racist tool; hence her tweet was racist.
See:
https://www.huffingtonpost.co.za/2018/01/15/comparing-black-people-to-monkeys-has-a-long-dark-simian-history_a_23333383/
https://www.orlandoweekly.com/Blogs/archives/2018/06/01/florida-republicans-really-dont-understand-why-its-racist-to-compare-black-people-to-apes
But the apes in Planet of the Apes were superior to humans and lorded over them.
What do you think Roseanne meant by the Planet of the Apes remark? That the person she was tweeting about is superior to her–a tweet of praise?
Not clear. What was her beef with Valerie Jarrett? It would be nice to have some context.
I’m not sure what led Roseanne to focus on her. I don’t think they have personal history or past battles.
In this day and age, “offense” is a commodity that is traded by those seeking some kind of power or edge. There was a long and angry discourse recently on a crossword puzzle blog – the clue was something like “transpire well”, and the answer was “Go OK”. Offense was taken at the fact that when put into the grid, the answer looked like “Gook”. In another instance, a long and heated debate arose over the usage of “Dutch Treat”. In 1999, David Howard, an aide to the mayor of Washington, DC, lost his job over his use of the word “Niggardly”.
It seems that the mobs will not tolerate the use of a word that merely looks or sounds like another, or one that has completely lost its original derogatory meaning. Of course, the intolerance is utilitarian – it is trotted out for the purpose of gaining an advantage or bringing someone down.
In some cases, this mob mentality is working – in the case of Roseanne’s cancellation the stated reasons were ratings and reputation, i.e., “The Bottom Line” – but the driver of that was fear of raising the ire of the pitchfork-and-torch crowd.
So it doesn’t really matter if Roseanne was using a “stock racist tool” or just making a comment about her looks – as WTP points out, the same comparison was made regarding Donald Trump. It’s all about perception and how much mileage can be gained by the serially offended.
It wasn’t too long ago that any criticism of Obama was deemed as “Racist”. In terms of a “stock tool”, I think that calling someone a racist has become the most powerful one of all.
But whether it is driven by a mob or not, I still maintain that ABC and the NFL are perfectly within their rights to take any legal or contractually-allowed action to protect their image or their bottom line.
I’m fairly sure the Muslim thing was a flash back to the theory that Obama was a secret Muslim.
The Planet of the Apes thing is the old tool of comparing blacks to monkeys. This was also used against the Irish.
https://thesocietypages.org/socimages/2011/01/28/irish-apes-tactics-of-de-humanization/
This was also used against the Irish.
Well as a part Irishman, let me say I’m not crying in my Jameson over it. I would also point out that this has also been used against Donald Trump….
http://www.indiewire.com/2018/05/bill-maher-right-wing-pundits-trump-orangutan-roseanne-barr-1201969647/
Of course Bill Maher is the real victim there. He was “targeted”.
Free speech is one of those many cases where our choice of words misleads us from the start.
Everybody can speak freely, and always could. “Free speech”, as used in Western democracies, denotes a restriction on the state’s power to suppress speech or to punish people for speech. And so it is, with exceptions for threats and endangerments.
If a politician says something you dislike, you can vote against them. If your mother tells you to clean your room, you can tell her to stop nagging. If your pastor preaches a message you disagree with, you can walk out of the church. If your dentist starts praising Trump, you can … well, you’re pretty much stuck there until he puts your mouth back together, but you can then find another dentist.
The question presented here is whether the state should have the power to restrict the ability of individuals or organisations to punish individuals informally based on their speech.
It should not, in general, because that gives the state the power to allow the suppression of speech in some cases while prosecuting it in other cases, and that approaches the power to suppress speech that is denied to the state.
The one area of law where forbidding some forms of retaliation for some instances of speech might be reasonable is employment contract law. Are there circumstances in which the state should limit an employer’s ability to react to the speech of the employee?
As I see it, an employee during the process of employment represents the employer, and if an employee speaks in a way that misrepresents the employer, a penalty or dismissal is justified. Thus, those kneeling footballers have no case at all in my opinion. An employee speaking about the employer, using privileged information gained while employed, merits similar restriction. If an employee discloses trade secrets, proprietary information, or rumours about the employer, similar measures are justified.
The more difficult case is when an employee engages in speech of which the employer disapproves, but outside the context of the employment. This quickly becomes complicated. Some employees are recognised as speakers for the employer – marketers, presenters, salespeople, celebrity endorsers, for example. The Roseanne case seems to fall into this category. Can such people ever speak publicly without reflecting on the employer?
On the other hand, if a local construction worker canvasses and hands out flyers for a cause or party unrelated to the employ, and outside employment hours, should the state disallow termination, and if so, in what circumstances? And what if something that employee does goes viral, and brings unwanted attention to the employer?
It would need to be established that such a law would do more good than harm.
Inaccuracy in my second last para. It should read:
On the other hand, if a local construction worker canvasses and hands out flyers for a cause or party unrelated to the employ, and outside employment hours, should the state forbid the formation of a contract that permits termination, and if so, in what circumstances?
This right here. I think DH has written something similar a while back but you are one of the very few I have seen articulate the true problem space of this issue properly. Yes, and it is even worded so in our Constitution and earlier in the Declaration of Independence, we are endowed with certain inalienable rights that the government should not infringe upon. Wish I had time today to comment more fully on this but long travel day ahead. Thanks for this post. Excellent.