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.
FREEDOM OF SPEECH IN THE WORKPLACE: Video of Event on November 15, 2017, at Santa Clara University
FREE SPEECH, MICRO-AGGRESSIONS, AND WHITE SUPREMACY: CHALLENGES OF OUR TIMES
It's not far off to say that the challenge of freedom of speech in our time isn't so much constitutional as ethical: How should the freedom to speak be coordinated with an increasingly diverse society?
In part, this challenge is raised by the sheer encounter between people who are very different and the inevitable confusion or sense of difference or sense of threat that such encounters may evoke. In part, this challenge is raised, too, by fears about political control over this increasingly diverse society: which persons or groups get to control (or at least think they control) the story and government by which American society lives? And in part this challenge is raised by a clash over freedoms: either a freedom of the far right to say anything one wants -- even if deeply offensive -- or the fear of freedom by the postmodern left intent on shutting down speech that it deems offensive.
Throughout the fall, we have posted a significant amount of material on freedom of speech. Here we want to post some important material that examines the reaction to the offensiveness of freedom of speech -- a reaction that has been represented by such terms as "micro-aggressions" and "trigger warnings" and more.
First, Santa Clara U. Philosophy Professor Robert Shanklin provides background and an outline for discussion around the term "micro-aggression." What does the term mean and how might a fruitful discussion be held about the term -- and about the use of language that is at issue when the term is invoked? We hope this brief material can help with answering such questions.
Micro-aggressions: Mountain or Molehill? Robert Shanklin, Ph.D. Philosophy Department, Santa Clara University
‘Microaggression’ has become a frequently heard but often misused word. Originally it was a technical term in psychology, dating from the 1970’s. Much of what is labelled ‘microaggressions’ is in fact flat-out discrimination or inappropriate behavior. A real definition used both in psychological as well as legal literature is:
“brief and commonplace ... verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative . . . slights and insults toward the target person or group”1
Two points about this definition are especially important. First, microaggressions are typically unintentional; the person committing the microaggression is generally unaware that they are committing any indignity, and may even be trying to pay a compliment. Second, microaggressions include environmental factors, non-verbal behavior as well as verbal behavior: a micro-aggression could involve the use of a certain word or phrase, a sexually explicit photograph in a workplace, or a gesture.
According to some, microaggressions are not a big deal. After all, they seem to be subjective: anybody could declare anything offense. It is also argued that people need to “grow a skin” because in a globalized and diverse world it is unrealistic to think that slights and offenses can be avoided. A related point is that, according to the Oxford Declaration on Free Speech, while rights to free speech are protected in some jurisdictions, there is no right not to be offended. Finally, skeptics point out that micro-aggressions are, by definition, both small and typically unintentional. If so, a strong reaction to any particular microaggression may be unjustified.
For others, microaggressions are (or can be) a big deal. A third important aspect of the definition is that microaggressions are commonplace. It is a mistake to focus on a single microaggression in isolation; persons targeted by any particular microaggression generally encounter it on a regular basis. The problem is thus not one event, but the 100 or 1,000 times the slight is endured. A persistent or pervasive slight, no matter how small, can add up, becoming offensive to a reasonable person. Moreover, legally protected categories are often at issue; microaggressions typically involve race/ethnicity, national origin, orientation, identity, religion, disability, age, etc. As a result, it becomes easier to see how calls for change may be objectively justified.
What to do about microaggressions can be a tricky question. Because they are commonplace, they are often taken “for granted” in society and the workplace. As a result, someone being told they have to change their behavior may feel that the request is difficult if not unreasonable. Another challenge is that context is crucial: what counts as a microaggression in one setting may not in another. It’s not just what was said or done, but how, when, where, and by whom. However, as there are multiple sources of objectivity (e.g. racial/ethnic histories, social perceptions, power differentials, etc.), there are sound reasons to put in the effort to change. Techniques include: resisting the impulse to defend the behavior as unintentional or normal, avoiding inferences about individuals based on their name/appearance/behavioral cues/etc., and using stock questions that highlight the behavior rather than the person engaging in it (e.g. ‘I heard you say ___ did you mean ___?’ or ‘What does ___ mean to you?’ or ‘When you said ___ did you realize ___?’).
1 This definition is repeated in legal sources (Wheeler, R. (2016) “About Microaggressions.” Law Library Journal, 108:2) as well as clinical/psychological sources: (Sue, D. W., et al. (2007). “Racial microaggressions in everyday life: Implications for clinical practice.” American Psychologist, 62). A search for ‘microaggression’ + ‘definition’ yielded 916 peer-reviewed hits.
Micro-aggressions: Mountain or Molehill? Robert Shanklin, Ph.D. Philosophy Department, Santa Clara University
- Definitions & background
- An often-misused term: many so-called “micro-aggressions” are just plain bad behavior or discrimination. Originally, it’s a technical term in psychology from the 1970’s.
- “brief and commonplace ... verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative . . . slights and insults toward the target person or group”1 (not just verbal, often unaware!)
- Context may determine slight or insult as much as actual comment/behavior/etc.
- Often based on common assumptions re: appearance, name, origin, religion, voice, etc.
- No clear line btw. “real” microagg. & basic rudeness, poor taste, honest mistakes, etc.
- What’s at stake?
- Ethical: unconscious mistreatment of others, perpetuation of problematic social perceptions?
- Legal: could become harassment issue if pervasive and leads to hostile environment.
- Practical & leadership: less efficient teams if some team-members are facing frequent or constant small slights/insults/exclusion/etc.
- Recruitment & retention: folks are increasingly aware of these issues & may not want to work at a firm with reputation for these issues.
- Why molehill?
- It’s too subjective: anyone can be offended by anything. Unrealistic to manage that.
- People need to “grow a skin;” in a diverse workplace there will be differences.
- There is no right not to be offended; perhaps it’s a cost of difference & diversity.
- By definition, they are unintentional & micro. People are too sensitive.
- Why mountain?
- Often pervasive: it’s not about the 1st or 2nd time, but the 100th or 1,000th.
- Frequent/constant slights can cross reasonable person standard.
- Protected categories are often involved: race/ethnicity, national origin, orientation, identity, religion, disability, age, etc.
- What to do?
- Know what they (really) are.
- Be aware of the sources of objectivity:
- Maturity is real (different standards reasonable for different maturity/experience).
- Relative authority is real & affects perceptions of acts/speech (supervisor vs. supervisee, executive, etc.).
- History is real (same act can have additional consequences/implications depending on where & when it occurs).
- Separate blame of individual act (unreasonable?) vs. culture/environment (reasonable).
- For supervisors & team leaders:
- Recognize & resist the impulse to be defensive (makes it worse, clouds the issue)
- Use self as foil (“did you hear what I just said” / “how I said that” / “let’s unpack”)
- Avoid inferences from appearance, name, voice, etc. (protected categories!)
- Don’t fetishize accuracy: grain of truth is irrelevant, focus on connotation.
- Use meta-linguistic scripts to address the behavior / language: “help me understand why you said /did...,” “what do you mean by...,” “what does ___ mean to you?” “I heard you say____ did you mean____?” “Let’s not try to avoid disagreement/difference but handle it like professionals,” etc.)
Second, Santa Clara U. Religious Studies Professor Paul Schutz offers a reflection here on the connections between free speech, NFL protests, and the charged racial climate of our times.
Is Free Speech Really White Speech? By Paul J. Schutz, Religious Studies, Santa Clara University
Over the last weeks, numerous NFL players, coaches, and owners have exercised their First Amendment right to free speech, “taking a knee” during the National Anthem. Their protest has been met with adulation and outrage; they have been viewed as beacons of hope and condemned for disrespecting the flag, the military, and the nation.
As we think about this act of protest, it’s important to recall that when former 49ers quarterback Colin Kaepernick first knelt last season, he did so to protest racist police brutality. In interviews, he explained, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color...There are bodies in the street and people getting paid leave and getting away with murder.” He added, “When there's significant change and I feel like that flag represents what it's supposed to represent in this country––is representing the way that it's supposed to––I'll stand."
This act of “taking a knee” raises challenging questions about free speech, protest, and the meaning of “America.” Do such acts really disrespect flag and nation?
In order to answer to this question, we need to think through what the flag really means. Whose flag is it? Does it – as the Pledge of Allegiance would have us believe – really represent “liberty and justice for all”? Kaepernick doesn’t think it does.
Here’s why: saying “the flag” means the same thing to all American presumes a unified history: a history of liberty and justice that has not been afforded to people of color. To those like Kaepernick, the flag is a symbol of the ‘dark side’ of America: enslavement, violent lynchings, and oppressive laws (think Jim Crow). Far from being a symbol of freedom, its red stripes drip with the blood of those who have lost their lives as slaves to a system of white supremacy that still operates today.
Where are the liberty and justice in the stories of those Americans?
Just as slaves were once denied their humanity, are victims of systemic racism in our nation denied the very essence of what it means to be “American,” daughters and sons of the flag? Is it possible that the flag is to one group a sign of “American values” and to another group a sign of white supremacy – of the denial of the very freedoms the flag supposedly represents?
To bring these questions full circle, is so-called “free speech” really “white speech,” a privilege not guaranteed by the First Amendment but doled out when it fits the dominant narrative of white supremacy that gave birth to our nation?
If yes, Kaepernick’s act of ‘taking a knee’ is an act in which we should all take part until the flag, as he says, comes to represent what it is supposed to represent: liberty and justice for all.
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?"
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"
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?
FREE SPEECH UNDER PRESSURE: NEW APPROACHES
HOPEFUL SIGNS IN A WORLD OF FALTERING SPEECH
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.
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.