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Educational Resources on Free Speech and Civil Discourse


As part of the Project on Freedom of Speech and Civil Discourse, the Markkula Center for Applied Ethics is committed to making educational materials on this theme more readily accessible to a broad readership. Please look here for the deeper looks into the complexities of this theme and for brief and accessible explanations of some of the key concepts in play. During the Fall Quarter, we'll especially be posting information related to freedom of speech. During the Winter Quarter, we'll be posting materials related to civil discourse. And during the Spring Quarter, we'll be posting materials about outstanding individuals or compelling visions of how to create communities out of broken speech.

Deep Dives

FREE SPEECH IN THE WORKPLACE: BACKGROUND

Can you be fired from your job for what you say at your job? Or on your own time outside your job? Or on a Facebook post on your personal Facebook page? 

In the last years, these and related questions have arisen, in part driven by the political divide in the United States, in part by the advent of social media, in part by tensions over speech and diversity arising throughout American culture. 

And high profile examples of these matters have been plastered across the news: Firing people who marched in Charlottesville on behalf of white supremacy; taking a knee for racial justice as a member of a professional football team; posting a memo about women's place in technology on Google's internal communication system -- and getting fired after doing so; and more. 

Here we feature some background on this topic. 

First is a link to an article by UCLA law professor Eugene Volokh on the free speech rights of employees: 

"Can Private Employers Fire Employees for Going to a White Supremacist Rally?" 
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/16/can-private-employers-fire-employees-for-going-to-a-white-supremacist-rally/?utm_term=.be79ad5b366e

Second is a piece from Forbes Magazine on the NFL protests and the limited rights of employees to speech in such a workplace:

"Don't Count on an NFL Defense; Free Speech Rights Aren't Guaranteed in the Workplace"
https://www.forbes.com/sites/janetnovack/2017/09/26/dont-count-on-an-nfl-defense-free-speech-rights-arent-guaranteed-in-the-workplace/#62a29a1716ff

And next is a short explanatory piece by Santa Clara U Law Professor Gary Spitko on free speech rights in the workplace. Professor Spitko generously wrote this piece for this website. The text follows below: 

A Primer on the Meaning of Freedom of Speech in the Workplace
By E. Gary Spitko*

Legal protections for workplace speech are very limited. Such protections might be found in the U.S. Constitution and state constitutions, statutory law, tort law, and contract. In general government employees enjoy greater protections for workplace speech than do private employees.

The First Amendment constrains government employers but not private employers. Thus, it is nonsensical to speak of First Amendment rights against a private employer. Even for government employees, the government acting as employer has far greater leeway to punish speech than does the government acting as sovereign.

Public employer infringement of workplace speech is analyzed under the Pickering/Connick test. Under this test, a court will first consider whether the speech at issue relates to a matter of public concern. If workplace speech does not relate to a matter of public concern, the First Amendment will not protect it.

If the speech does relate to a matter of public concern, the court then will consider whether the speaker was speaking pursuant to her official duties. The First Amendment does not protect workplace speech when the employee is speaking in her official capacity as an employee. Thus, in sum, only if the government employee is speaking as a citizen rather than as an employee on a matter of public concern will the First Amendment potentially protect the speech.

Even then, the employee’s interests (and the public’s interests) in her free speech must be weighed against the government’s interests as employer. In essence, a court will balance the importance of the employee’s speech against the employer’s interest in the efficient and effective operation of the government workplace. Thus, speech of high public concern that poses little threat of workplace disruption is likely to be protected while speech of low public concern that poses a significant threat of workplace disruption is not likely to be protected.

For private employees, a significant source of workplace speech protection is found in sections 7 and 8 of the National Labor Relations Act (NLRA). These NLRA protections do not apply to government employees. The NLRA protects “concerted activities for the purpose of … mutual aid or protection.” Pursuant to this provision, the NLRA may protect workplace speech only if the speech involves or is preparation for group activity, relates to a matter of common concern among employees, and addresses terms or conditions of employment. Even then, the speech will be protected only if it is not unduly disruptive of the workplace.

Additional sources of potential statutory protection for free speech are whistleblower statutes and the anti-retaliation provisions of various employment statutes, particularly nondiscrimination statutes. Tort law rarely protects workplace speech, but the tort of wrongful discharge in violation of public policy has provided some protection. For example, an employer that terminates an employee’s employment because the worker testified truthfully before a legislative committee may be liable in tort. Finally, “just-cause” clauses in employment contracts may provide workplace speech protection. Relatively few U.S. workers, however, benefit from employment contracts with just-cause protections.

* Presidential Professor of Ethics and the Common Good and Professor of Law, Santa Clara University.

DO ALGORITHMS AFFECT FREEDOM OF SPEECH AND CIVIL DISCOURSE?

This is a remarkably complex issue and one belied by what appears as the increasingly wide open world of speech created by the technological revolution in communication. If anything, Twitter, Facebook, and other platforms have seemed to break open the world of speech into a new degree of freedom and an even more vigorous -- even if not infrequently contentious -- mode of civil discourse. 
 
The work of tech and society scholar Zeynep Tufekci has focused on this problem in numerous books. But she along with other writers has called attention to the ways that the technology in question can be gamed to dispense massive volumes of knowingly fake or distorted information. In a recent opinion article in the New York Times, she took Facebook to task for its initial, muted response to the Russian infiltration of its system -- as if the Facebook platform during the 2016 election was simply another instance of the free-wheeling marketplace of ideas aimed at by freedom of speech. By contrast, Tufekci argued, "In a largely automated platform like Facebook, what matters most is not the political beliefs of the employees but the structures, algorithms and incentives they set up, as well as what oversight, if any, they employ to guard against deception, misinformation and illegitimate meddling. And the unfortunate truth is that by design, business model and algorithm, Facebook has made it easy for it to be weaponized to spread misinformation and fraudulent content. Sadly, this business model is also lucrative, especially during elections. Sheryl Sandberg, Facebook’s chief operating officer, called the 2016 election “a big deal in terms of ad spend” for the company, and it was. No wonder there has been increasing scrutiny of the platform."
 
For Tufekci's article, please go to: https://www.nytimes.com/2017/09/29/opinion/mark-zuckerberg-facebook.html
 
But it's important to realize that this problem of the abuse of algorithms has been building for a long time. In another opinion article, "Our Dangerous, Idiotic National Conversation," from this fall, conservative columnist George Will noted how UCLA legal scholar Eugene Volokh predicted in the 1990s the technological information sphere we now have. As Volokh said in a 1995 Yale Law Review Article, "Cheap Speech and What It Will Do," “letting a user configure his own mix of materials” can cause social problems: Customization breeds confirmation bias — close-minded people who cocoon themselves in a cloud of only congenial information. This exacerbates political polarization by reducing “shared cultural referents” and “common knowledge about current events.” Will also notes the more recent work of legal scholar Richard Hasen, who returns to Volokh's essay and argues that we should not construe the First Amendment as prohibiting laws requiring “social media and search companies such as Facebook and Google to provide certain information to let consumers judge the veracity of posted materials.” Will is an admirer of Volokh's highly accurate prediction, much less so of Hasen's proposed solution to the problem of the use of tech platforms to disseminate fake news. But, in any case, from Will's column and the work of Volokh and Hasen we have a vivid sense of the new, algorithmic landscape of free speech and civil discourse in which we now live. 
 
For the George Will column, please go to: 
 
https://www.washingtonpost.com/opinions/our-dangerous-idiotic-national-conversation/2017/09/20/9e18309e-9d58-11e7-9083-fbfddf6804c2_story.html?utm_term=.7449f2fe53b0
 
For Eugene Volokh's article, "Cheap Speech and What It Will Do," please go to: http://www2.law.ucla.edu/volokh/cheap.pdf
 
For Richard Hasen's commentary on the Volokh essay, please go to: 
 
http://www.latimes.com/opinion/op-ed/la-oe-hasen-cheap-speech-democracy-20170818-story.html
 

FREE SPEECH UNDER PRESSURE: NEW APPROACHES

Free speech is under pressure on university campuses and in our political discourse. In response to such pressures, some important new thinking about free speech is underway. 
 
UC Berkeley Chancellor Carol Christ, who a few short months into her tenure has already dealt with major free speech controversies, recently published an opinion article in which she argued that "I have come to realize that free speech must be more than a set of principles but a process of engagement — a process complicated by unsettled areas of the law: what expense is reasonable for an institution to incur in the protection of speech, what regulation of time, place and manner is appropriate, what constitutes a sufficient security threat to justify cancelation of an event?"
 
 
Also, Columbia University Professor Timothy Wu recently argued that three steps need to be taken to shore up the protection of the right to freedom of speech. First, he argues that more must be done to protect journalists and speakers from harassment and threats. Second, he says that social media companies should be barred from accepting money for political ads from foreign governments. And, third, he calls for the White House to be held accountable for using private entities to pressure citizens to silence speech that the White House does not like (an example here is President Trump's threat about the tax status of the NFL in the context of the president's demand that the league police NFL player protests or risk losing its preferred Federal tax status). For Wu's article, please go to: 
 

HOPEFUL SIGNS IN A WORLD OF FALTERING SPEECH

Hate speech, conversations that go nowhere, the sense that no one listening, the even worse sense that it's not even worth listening: All these aspects of broken speech are on us these days. So it's good to stop and consider some successes in response to this breakdown -- or at least some approaches to the breakdown that seek ways around what can seem like impossible impasses. Here are a couple of hopeful signs. 
 
First, a study found that "Reddit Limits Noxious Content by Giving Online Trolls Fewer Places to Gather
 
Second, David Brooks in "How to Engage a Fanatic" in the New York Times invoked an unusual motive -- unusual in our world of abusive discourse -- for handling conversations that veer quickly into a dead-end: Love. 
 
--Free Speech and the University Under Assault: Former Cal Chancellor Nicholas Dirks
Former Cal Chancellor Nicholas Dirks spoke at at Santa Clara University on October 2 on "Free Speech and the University Under Assault." Dirks was chancellor at University of California, Berkeley, during the free speech conflicts in the Winter 2017 featuring Milo Yiannopoulus and riots by antifa protesters that shut down Yiannopoulus' speech. Here's a link to Dirk's talk and an interview with him following the talk conducted by SCU Campus Ethics Director David DeCosse. 
 
--U.S. Air Force Academy Commandment Affirms Free Speech and Denounces Hate Speech 

After racist graffiti was found scrawled near the rooms of African American cadets at a prep school for the United States Air Force Academy, Lieutenant General Jay Silveira called in all students and staff and gave the following short and powerful talk that denounced hate speech, affirmed free speech, and set clear boundaries regarding speech and membership in the community at the USAAF. 

SANTA CLARA UNIVERSITY LAW SCHOOL PROFESSOR ERIC GOLDMAN'S POPULAR "TECHNOLOGY AND MARKETING LAW BLOG" COVERS FREE SPEECH AND CAMPUS LIFE 

SCU Professor Eric Goldman runs one of the most important blogs covering the intersection of law, technology, and speech. In these links, Goldman or guest bloggers address key issues related to freedom of speech, technology, and universities. This sampling is a snippet of Goldman's attention to this theme. We invite you to visit his blog for much more. 

 

CAN SPEECH BE VIOLENT -- OR NOT?

Is it accurate to say that speech can actually be violent? A great deal follows in ethical terms from how this question is answered. Here are two paired articles -- one claiming that abusive speech is per se violence and ought to be silenced and the other disagreeing strongly with the claim and arguing for the connection between freedom of speech and peace. 
 
Northeastern University psychologist Lisa Feldman Barrett argues that abusive speech is properly understood as violence due to its effects on chronic stress. 
 

FREE SPEECH ON CAMPUS

All around the United States, the issue of free speech and civil discourse at universities has become a crucial topic for our times. Hard right speakers clamor for free speech to denounce what they think is political correctness. The postmodern left, in turn, has shut down speakers around the United States whom they consider fascist. In the middle of these disputes are profoundly important ethical questions about, among other things, freedom, racism, the nature of language, the production of new knowledge, the role of the institution of the university in shaping citizens, and our country's political future. These articles address various aspects of this important topic. 
 
In this opinion article, former Cal Chancellor Nicholas Dirks argues that challenges to free speech today from the right and from the left are both in effect taking aim at the very idea of the university as a place for freedom of inquiry and the discovery of new knowledge.
 
Shutler interviews Erwin Chemerinsky, the noted Constitutional scholar, on his new book "Free Speech on Campus" (written with Howard Gillman). Chemerinsky will be speaking at Santa Clara University on his new book on January 30.
 
A recent study found that a fifth of U.S. undergrads think it's acceptable physically to silence a speaker who makes "offensive and hurtful statements.