Over at Popehat, Ken White is beating his favorite drum: the difference between legal and social protections for speech.
But speech has private social consequences, and it’s ridiculous to expect otherwise. Whether sincere or motivated by poseur edginess, controversial words have social consequences. Those social consequences are inseparable from the free speech and free association rights of the people imposing them. It is flatly irrational to suggest that I should be able to act like a dick without being treated like a dick by my fellow citizens.
And of course that’s absolutely correct. The background is that (now former) Business Insider CTO Pax Dickinson tweeted some offensive things on his private account, Valleywag took him to task for it, and now a lot of people, including Pax himself, are complaining that he’s the victim of a witchhunt. There’s even a whole hashtag about it.
I think there are some gaps in Ken’s presentation.
The foundation of "witch hunt" rhetoric is the notion that some free speech (say, Pax’s) is acceptable, and other free speech (say, the speech of people criticizing and ridiculing Pax and his employer) is not. You can try to find a coherent or principled way to reconcile that, but you will fail.
That’s basically right, but I wouldn’t put it precisely that way. In particular, I don’t like how this line suggests that "witch hunt" is an empty meme that is always a cover for people trying to reserve the right to speak to themselves and deny it to their opponents. The whole foundation of Ken’s complaint is, after all, that some speech, however legally free, is socially unacceptable, and that people are free to say so.
Pax Dickinson is not stupid. He tweeted provocative things, which have a natural and probable tendency to cause social consequences, seeking the social consequences he wanted: the admiration of the like-minded, the anger of people he could laugh at, and general attention. Yet, oddly, he and his supporters seem to think that some social consequences (approval, admiration, small-scale disagreement they can laugh at) are legitimate and other social consequences (large-scale/organized criticism and ridicule) are not.
I actually don’t think there’s anything "odd" about it at all. In fact, I’m pretty sure everyone has ideas about what social consequences are legitimate and which are not, and almost nobody believes that there is no line to be drawn there. And indeed, Ken himself makes this point later:
Some also criticize social consequences to people like Pax Dickinson as disproportionate. There’s nothing inherently wrong with this argument. Proportionality or lack thereof is a legitimate subject of debate in the marketplace of ideas. If that marketplace of ideas determines that a social reaction to speech was disproportionate, it may inflict social consequences on the people who reacted.
And I think that is exactly what’s at issue here. It’s a discussion about whether Valleywag’s reaction to Dickinson’s clearly provocative speech is socially acceptable – that is, it’s about the manner in which they responded, not about their (social and legal) right to respond (which I guess no one actually denies, Mr. White’s framing of the issue to the contrary). Since Ken doesn’t mention it in his column, even though it’s clearly relevant, let’s review what exactly Valleywag did. On Monday they stumbled across (or were tipped off to) Mr. Dickinson’s Twitter feed, which they posted on their blog. They then followed up with this:
We’ve contacted Business Insider founder, editor, and CEO Henry Blodget, who recently received a $5 million funding round led by Jeff Bezos to see how he feels about Dickinson representing his brand.
To me, that does indeed cross a line. This isn’t just a matter of responding to speech with speech and duking it out in the marketplace of ideas. Valleywag made what would appear to be a deliberate attempt to get Dickinson fired, or at least reprimanded and censored. Not in the sense that they called Blodget and explicitly told him to fire Dickinson or else, of course, but that’s the pretty clear implication of mentioning that Dickinson is "representing [Business Insider‘s] brand." And here’s what Ken thinks about that:
Finally, I should note that one social consequence is employment-related. In many American jurisdictions, employment is "at will" unless the parties have a contract that says otherwise; an employer can fire an employee for any reason not prohibited by law. Private employers can generally fire private employees based on their extra-curricular speech. That’s private action, not government action; it’s an exercise of such free association and free speech by private entities as the law allows. Employers may face social consequences — particularly in a social media age — for exercising that right in a way that angers the public, which is in turn the public’s free speech right.
Alright, but saying the public has that right and agreeing that they should exercise it in precisely that way are two entirely different things. Lots of things are legal which are nevertheless undesireable. Indeed, as Libertarians we tend to argue that lots of things which are currently both ILlegal AND undesireable should be legal, the undesireability notwithstanding. It seems like we should be able to agree that the tendency of some segments of the public to demand that anyone who crosses their lines be rendered unemployable is undesireable, even though we think it should be legal.
And here’s where I really get off the boat. Ken goes on to reprint this tweet from Mr. Dickinson: "Tech managers spend as much time worring aobut how to hire talented female developers as they do worrying about how to hire a unicorn," about which he says:
Pax Dickinson is apparently an officer within Business Insider, someone who supervises employees, and someone who interviews applicants to jobs at Business Insider. If anyone ever accused Business Insider and Pax Dickinson of sex discrimination in hiring or firing, or of workplace harassment or discrimination, that tweet would be useful evidence for the plaintiff, and might convince the jury of discriminatory intent on the part of a Business Insider officer whose actions are attributable to his employer. He has a First Amendment right to tweet that and cannot be prosecuted for it. Nor is the tweet, itself, a civil violation. But it’s potentially powerful evidence of how Business Insider is run, and it’s a freakishly reckless thing for an officer of a business to say in public.
All true. That said, I don’t see what’s wrong with reserving judgement on whether Mr. Dickinson engages in workplace discrimination until something more substantial than a tweet comes along, which is, to put a fine point on it, precisely what Valleywag did NOT do. What it sounds to me, based on their article, like Valleywag does is identify people who say things they don’t like and try to attach consequences to saying those things that go beyond a simple public shaming. Mr. Dickinson fits their profile of someone who might engage in workplace discrimination, and they’re happy to have him fired on that basis rather than because anyone lodged a real complaint against him. Which is to say, they go around looking for people who fit their description of a criminal and punish them in advance of any real evidence of a crime, let alone a proper investigation of that evidence. That’s a witch hunt by any definition.
Ken White is surely right that reality on the ground is that if you tweet things like what Dickinson tweeted it may affect your job. He sidesteps the issue of whether it should affect your job. As they say, you can’t derive an ought from an is, and I think the more pressing issue is whether we think this is a healthy climate. I, for one, don’t. I think the world would be a better place if people didn’t have to worry about getting fired for what they put on their private Twitter feed. There is no legal remedy I can or even would apply to "fix" this situation – it’s rather something I’m hoping people will join with me to agree on, and so change the world by consensus. You do it by, among other things, continuing to watch Paula Dean even though she might have once said "nigger." You do it by letting PlayHaven and SendGrid know that firing is a step too far for dongle jokes and tweet-shaming, respectively, especially when PyCon had already resolved the issue privately. You do it by complaining about Pax Dickinson on Twitter without running to tell on him to his boss. And you do it by not pretending that Pax Dickinson is just talking out of his ass about the "witch hunt" thing. Yes, Dickinson said some offensive things. Yes, people are within their rights to say offensive things back to him. Yes, the government shouldn’t punish any of it. Yes, it’s whiny to cry "free speech" every time someone criticizes you.
But that isn’t the end of what’s going on here. What’s going on here, really, is that we have yet another example of how incredibly thin everyone’s skins have gotten, and just how intolerant we’ve actually become in the name of "tolerance." It’s fine to say that everything Pax Dickinson and Valleywag did are legal, but in neither case do they contribute to the kind of society I think most of us want to live in.
Pax Dickinson is pretty clearly an attention whore. Let’s call him that. And then let’s stop. Because if he’s an attention whore who can do his job without hurting anyone, he should get to continue to do his job. If Business Insider would prefer he were less of an attention whore, and they want to make that a condition of employment, well, that’s really between BI and Pax Dickinson, and it’s the kind of thing that it was really their responsibility to address before Valleywag called them to apply pressure. If BI has been letting Dickinson tweet whatever he wants for a year, Dickinson should be able to proceed under the assumption that they have no problem with his tweets. And if that changes, they need to give him an opportunity to change with it. Valleywag should find some other tools in its chest to reach for before always grabbing the power drill. And Ken White needs to find better things to do with his time than muddying the waters on the marketplace of ideas. Valleywag is a blog that specializes in witch hunts, and Pax Dickinson calling it what it is is not "whining" any more than people calling him an asshole is an affront to his free speech. It’s possible for both sides in a dispute to be wrong, and that seems to be the case here. Ken White isn’t doing anyone any favors by focusing on only one of them.