Dear The Stranger, Free Speech is a thing – even for off-duty cops.
Unless you have real evidence that this person is letting his politics interfere with his work, or spending time on Facebook when he’s on the public clock, then this really shouldn’t be a story.
The idea of employers – or the press – monitoring worker’s Facebook pages for “wrong” political opinions is far more horrifying, and far more of a threat to freedom, then anything some jerk cop writes on Facebook.
UPDATE
Let me note that in this post, when I refer to “freedom of speech” I’m referring not to First Amendment law, but to what I’d call a “free speech culture,” by which I mean a culture in which people can feel free to speak out on controversial issues without facing unreasonable and disproportionate reprisals. I worry that in our current culture – in which partisan hatred and fury has become so ordinary (on both sides) – only those with the thick skins and secure positions will feel comfortable speaking out.
Although there’s no government censorship going on here, we can and should want more for free speech than just “no one was thrown in jail.”
An example of what I mean by a “unreasonable and disproportionate reprisal” is having a well-known newspaper comb through your Facebook feed in order to cherry-pick the worst-sounding quotes.1 This reporting includes calling your bosses to inform them of what you’ve been writing on your Facebook page, and getting them to “consider… a formal investigation into” you.
Suddenly your Facebook activity is exposed to thousands of people you never expected to be scrutinizing your words, the pages you’ve linked, and what you “liked.” Total strangers on social media and in the Stranger’s comments are questioning your intelligence, your competence, and your worth as a human being.
It’s a seriously unkind thing to do, and newspapers like the Stranger shouldn’t do this lightly. There are obviously cases where someone is enough of a public figure so that any political opinion they express, regardless of context, is a reasonable news story. But “police Sergeant”simply isn’t in that category.
Now, there are cases in which reporting on the political opinions of a police officer might be important because they directly call into question if Hall is a suitable person to be a police officer. For example, if Sergeant Hall had called for police to engage in illegal beatdowns of civilians. But Hall didn’t say anything of the sort; he just spouted the typical opinions one hears every day from law-and-order Republicans. And just being a right-winger is not enough to mean someone can’t be a cop.
I really can’t think of any reason why it’s the public’s business to know what Hall’s opinion of Obama is (a point the Stranger emphasized in the headline). I don’t want that sort of thing reported about right-wing cops in newspapers, any more than I want that a left-wing cop hates George Bush to be reported in the National Review.
I’m not saying that free speech can or should mean freedom from consequence. But the consequences should be proportional. If the people who read Hall’s Facebook feed criticize him, think less of him, argue with him, or even decide they don’t want to be friends with him anymore, that’s fine. I’ve seen conservatives treat criticism as if it were censorship, and that’s ridiculous.
But when ordinary citizens – including midlevel cops – can’t yak about politics on Facebook without worrying that reporters will be searching for cherry-picked quotes or calling their bosses, that’s unreasonable. It’s disproportionate. And it’s not helpful to a free speech society.
- For example, reporter Ansel Herz highlighted two ugly-sounding quotes from a Facebook comment Hall wrote, but didn’t highlight this much more reasonable quote, although it’s in the same comment: “If it turns out that Officer Darren Wilson shot Michel Brown while he was surrendering, then he should be prosecuted for murder. I don’t think that will be the case, but I’m willing to see it as a possibility.” [↩]
Apologies for posting and vanishing for a few days – the start of the semester is a busy time.
Re: the clause in my contract. I should note that when I was fired, the reaction of the faculty body was shock and surprise, because most of them (even those in the Faculty Senate) didn’t even realize the clause was in the contract as it had never, in institutional memory, been exercised. The comment by Inside Higher Ed was a paraphrase; the actual language was even more vague.
The other point I want to make is that this action was taken based on a complaint I was never allowed to see/read, even hear a paraphrase of, or know the origin(s) of. Everything I know about it, I have sussed out through my own detective work. I walked into work, was called into my boss’s office, and handed a letter by an HR person, signed by the president, saying I was fired because the president had been “made aware” of my activity outside school. No harm had yet come to the university – in fact the harm came after they fired me when I brought suit against them, which got into the papers.
I pointed out that if there had been a complaint that I said to a student “you need to have sex with me if you want to pass this class,” I would have been explicitly guaranteed by the university handbook to 1) know who my accuser was, 2) see any evidence presented against me, and 3) present my own counter-evidence, witnesses, explanations, etc. But this vague objection of unknown person(s) allowed them to bypass any kind of due process (and the faculty governing body as well, who normally would have input).
I also pointed out that if any off-work conduct that “might” raise objections from someone, somewhere, and reflect on the university were a firing offense, that could conceivably include
– a faculty member driving a Humvee (the university had various ecological/”green” oriented programs)
– a faculty member demonstrating for Palestine or Israel outside the weekly farmer’s market in Oakland
– a faculty member yelling at their child in the grocery store when the child misbehaved
– a faculty member being drunk at a bar on a Saturday night
– a faculty member signing a petition to legalize marijuana, or against revoking the death penalty
– a faculty member writing a negative Yelp review about someone’s business
Given that the school was originally one of those California-style “professional schools” (what I’ve come to think of as the “hey, kids, let’s put on a school!” model) started in the 60s and 70s when people thought “if I can do this, I can teach other people to do this,” it is held in a certain kind of nostalgic esteem by Bay Area, “San Francisco Values” types. It had, at the time, various programs with ecological bents, spiritual/New Age bents, “holistic health” bents, etc. So all kinds of activities of faculty members, which could be deemed by someone to be “out of step with the university’s mission,” could conceivably lead to some student or community member or staff member or even faculty colleague complaining, for example, “this person is making us look bad because our faculty in the Holistic Counseling program attended SkeptiCon and wore a t-shirt making fun of the idea of chakras.”
The Faculty Senate apparently had QUITE the conversation about exactly this after I was fired. And, the issue brought up by La Lubu (I think) was a predominant one: that certain people’s mere existence is potentially “controversial” and to follow a path in which any controversy, no matter how manufactured or cynical, could be a firing offense (particularly if the administration is looking for an excuse to get rid of you or make an example to others), is a very dangerous one.
Back on my head.
Oh, and I still support looking into the publicly-expressed racist and violent comments of a cop that might conceivably translate into inability to do his job in an unbiased fashion and preserve the public’s civil rights, and which might undermine his testimony in a court case. Just as I would support taking a critical view of a teacher commenting “I hate all my students and wish I could fail them all.”
If that’s functionally true, then he shouldn’t have been fired.
And the question “how old is our planet?” is much simpler than most questions physical scientists are trying to answer, while “how should we value these competing factors?” and “what should we sacrifice to get this goal?” are thorny policy questions that are informed by, but are not the major work of, social scientists and humanities scholars. Pointing to the most straightforward thing that physical scientists do, then pointing to the most political possible interpretation of something social scientists/humanities folks do, is not a fair comparison.
I’ll go back to my biology example: The fact that evolution is the best current theory seems obvious to you and me, because we already agree on a fundamental tenet of science that religious arguments don’t have a place in determining scientific truth. But that is not a universally agreed-upon argument, and the people who disagree are largely conservatives. Why is it okay to ignore their objections, but not okay to ignore the objections of people who don’t like the theoretical decisions made by, say, anthropologists?
Gin-and-whiskey’s extensively elaborated concern for whether this professor whom I know nothing about was actually hired has put me in mind of another case in which there was no actual hiring. In that case, the hiring (or not-hiring, if you prefer) authority was found by the court of appeal to have made an offer, and to have rescinded it illegally.
(It’s perhaps beside the point of this thread, so people who deplore topic drift and digression can save themselves some gnashing of teeth by skipping to the next comment.)
I refer to Schroer v. Billington. Diane Schroer, a decorated special forces veteran with very impressive qualifications, applied for a job at the Library of Congress and was clearly (the court found later) the best applicant for the job. Charlotte Preece, the person who was doing the hiring, did not get to the actual point of making Schroer a formal offer which they signed, but she did do such things as give Schroer a tour of the offices, tell her what her job responsibilities would be, and introduce her to other staff members as the new hire. Diane Schroer, who was at the time presenting as male, shortly explained to Preece that she was in the process of a medically-supervised transition and suggested that it would be smoother for all concerned if she showed up having transitioned to presenting as herself, which she was ready to do, rather than showing up in her male guise and then transitioning a short time later.
The following day they notified Schroer that they had decided not to hire her. At trial, the government advanced five reasons why they did not hire her, and Judge Robinson ruled them all pretextual.
Then, Judge Robinson penned what is probably my favorite legal analogy of all time:
This analogy he offers to explain why he writes
Thank you, Judge Robinson, for being able to see so clearly where others haven’t.
Ah, if only all personnel managers were either perfectly honest, or inutterably stupid. We wouldn’t need much labor law. Jake is right, and refreshingly straightforward, when he says as an HR professional,
Jake also points out that
This is exactly what I feared when I transitioned. And now, over a year and a half later, I can say that while I have not been fired, my career has levelled off suddenly, a change in slope which one would not have predicted based upon the evidence of the previous eight years. Is it because I transitioned, or because I’m trans? I couldn’t prove it in court, but as a long-time supervisor in my agency, I can say that my administration knows perfectly well how to make a decision defensible.
In the Schroer case, Preece lost because she thought it beyond argument to say openly that she gave a lot of thought to her opinion that Diane Schroer, in the pictures she showed to Preece, looked to Preece like “a man in a dress”. It was the evidence of this preoccupation, together with some other evidence, which made it clear that her concerns about Schroer’s fitness were pretextual.
This inability to get past her own preconceptions prefigured the reaction of Sewell Brumby, a supervisor within the Georgia General Assembly’s Office of Legislative Counsel, a few years later. Brumby apparently thought it perfectly defensible to state, in defense of firing an otherwise-unobjectionable employee
Brumby also lost.
In losing, both of them struck a blow for equality and fairness, making some AWESOME case law which probably benefited me when I included the decisions (among other things) in the packet I helpfully provided to my administration when I transitioned. So, yay for incompetent personnel managers!
Anyway, all of which is beside the point of this thread. It just sprang to mind as we talked about a tenured professor who agrees to quit his tenured position and move his family across the country in order to take a job which he has been told is his… it sounded familiar.
It also put me in mind of the time the Federal government hired me and I drove across the country with every possession I could cram into a used 1981 Toyota Celica in order to take the job… only to be told four days after I arrived that my job would no longer exist at the end of that month. Perfectly legal, but somehow, to this day, it sticks in my craw. Why do you suppose that is?
Grace
(edited for grammar, syntax and clarity)
It’s always a pleasure reading your comments, Grace.
I’m really sorry to hear that.
The Miley Cyrus photo? Memory fails me.
If I say, “Your cooking makes feces into a viable menu option,” do you really think I’m saying that shit is good for eating?
I would imagine that you would be saying such a thing in a facetious manner. I don’t think Prof. Salaita is. I think he means it literally.
Harlequin:
This is a really good point, and well put. I think this is a reason it’s a good idea for many (not all) regulations on employers to only apply to employers with over some threshold number of employees.
Getting back to the original post, I was reading in the gay press today that FB is now enforcing — selectively — its requirement that people use their real names. Not sure how they are enforcing this, any FB users have more info?
Apparently this is big issue for GLBT people, especially kids, who very likely need anonymity to avoid repercussions. Drag queens and gender nonconforming people as well. You can create a pseudonym, but it must be attached to your real name profile. Given the ubiquity of FB, will making it more difficult to hide behind a pseudonym necessarily mean an infringement of free speech? Do people even have a right of free speech on a private platform such as FB? Or is FB considered public space?
Hmm, that’s interesting, Mark J. Perfectly obvious why Facebook would try it. (After all, they are primarily a company that collects data about users and sells it on to advertisers and other businesses; secondarily a photo-sharing service; and everything else third. The selling-on-data part is especially valuable if they can attach their profile data to real names.)
It will be interesting to see if it sticks. Google did this in the early days of Google+, and eventually stepped back from it. IIRC, the pushback that worked best was pointing out the huge issue for abuse and (especially) stalking victims. I wonder if the world has changed enough in three years that “queer and trans people need pseudonymous spaces” would be effective now. Of course, Facebook and Google+ are different beasts, and serve a different clientele–in fact I’m surprised there are many pseudonymous accounts on Facebook at all.
A few thoughts on the employment discussion. Most of my comments are addressed to G&W, as this seems to be a particularly hobby horse of his and one to which he has obviously given a great deal of thought.
As I previously stated, I am not unreceptive to your ideas, but I believe they work better as ideas than they do as policy. I’ve been struggling to figure out and put into words where I think you have gone astray and what it is that so bothers me about your employment worldview.
You seem to think that employers should be able to fire an employee for any cause or no cause (except for immutable characteristics and a “few other reasons”). You realize this might be a harsh burden on employees, so you advocate for extra unemployment payouts for 6 months. (Actually, you advocate for ERs paying extra unemployment to the govt, but you never actually stated, I don’t think, that EEs should actually receive that money. Correct me if I am wrong.)
That extra 6 months is all well and good, although in a tough economy where jobs are scarce it isn’t really that much. Still it is something. So in G&Wland, this extra cash balances out the loss of job security. However, in the real world where the rest of us live, no one is seriously advocating for an expansion of the social safety net. It is a nonstarter for the GOP who are hell-bent on removing what few protections there already are. (Yes, there have been a few recentish examples of unemployment extensions, but they are small and very limited in scope.) If you ask most EEs if they would rather have more job security or an extra $50/wk unemployment for 6 months with no job, I know what most will choose.
There are few people of influence advocating for an expansion of EE rights, such as your extended unemployment. The ERs however are currently sitting on a few trillion (no exaggeration) in cash that they are more than happy to spend on politicians and judges to limit EE rights. Hardly a fair fight. But hey, since money=speech, what are we to do?
I am also concerned, G&W, about your apparent lack of concern over the welfare of ordinary people, contrasted with your obvious concern for the poor overburdened business owner. The business owner who is apparently just one bad employee away from losing everything. It just seems to me that you fail to appreciate the power differential between employers and employees. EEs, especially those small business owners you love, are the ones who make all the business decisions, including who to hire. And if an owner hires a useless EE and it makes his otherwise wonderful business fail, he isn’t the only one to suffer for his bad decisions. All the other employees, who had no say in the business decisions, lose their livelihood as well.
You gave an example of a bad employee that was costing money because they couldn’t be fired; money that could be divided up among the other employees. So this bad employee was costing everyone money. But in the real world it doesn’t work that way, G&W. When an EE leaves, for whatever reason, their salary/pay isn’t divided up among the rest of the EEs who must pick up the slack, that money often goes to the owner as extra profit. If they are hourly, they might get a few extra hours. Or not, given the rampant wage theft today among businesses.
I am also concerned, G&W by your seeming belief that the only purpose of a business is to make money. You’ve drunk the Kool-Aid America sells that tells us mo’ money, mo’ better. I personally believe that companies of all sizes have a responsibility to the communities where they operate. The communities that provide them with the infrastructure that allows them to operate and make all those piles of cash they want so badly. It is an old-fashioned idea, I know, but what can I say?
Lastly, G&W, in your ideal world, if Jerry loses his job, then Jenny can be hired to fill his spot so it is a wash and therefore no big deal. Except to Jerry. But hey, Jenny is happy. And Jerry is free to go find another job he might prefer. But what if there aren’t any other jobs? It seems in G&Wland, there are always other jobs, brought to you by earnest small business owners who can fire employees at will. In the real world, particularly in smaller communities, this just isn’t so. And most people are working a job not because they want to or because they like the work particularly, but because they must and that is the best they can do. We can’t all be employment lawyers working for ourselves. Some people have to gut chickens at the local poultry processing plant for minimum wage.
I think our workers and our citizens deserve better than the utopia you promise, because I just don’t see that it is better for anyone but the people who already have too much.
I could be wrong. But I don’t think so. We have seen a huge erosion in the rights of workers over the past decades, largely associated with the decline of unions. The loss of the middle class and the staggering income inequality we see today is a resulting problem. And I suspect that you care more about your ideal world of theories on what is “the best way to achieve a goal” (not sure we would agree on your goals) that you don’t see the need to do what actually works and is best for everyone, not just making more money for a gilded few.
Read in context, I think that’s not an entirely fair assessment. I’ve created a new post for discussion of Salaita’s tweets.
Legally, or in terms of free speech culture? In terms of free speech culture, not allowing pseudonyms is a bad thing, both for the reasons you posted and because people can and do get fired over what they say on Facebook. But for FB, whose users are its product, not its customers, it’s pretty much par for the course.
I love the bit about being able to create a pseudonym as long as it’s attached to your real name. Way to defeat the purpose! The only worthwhile use I can see for *that* is for people in the SCA, or historical reenactment, or LARPs, or other groups who want people to be able to associate their character or persona with their real name. For people who want actual anonymity, it’s pretty useless.
For FB, from what I can tell, the easiest way around it is to create a real-sounding name that isn’t yours, attached to a separate email address, and not include location information or any other personally identifying details.
I don’t think that this should always be true.
I do think that this is the appropriate principle to start from: if I am going to pay you money, then I should be able to have significant control over the terms so long as you retain the control over whether or not you accept it. I think that there are certainly exceptions.
That is an example, not necessarily a final solution. Also, you need to clarify whether you’re talking generally or specifically, because that matters:
Tom and Dick are workers.
Tom is on his last month of unemployment. Dick has a job at ABC Corp.
Dick gets fired by ABC. Dick starts unemployment for the first time.
Because Dick was fired, Dick also gets extra payment from his employer–in other words, Dick is getting MORE social benefits than Tom had previously.
One month later, Tom gets Dick’s old job.
It makes absolutely no sense to focus only on Dick and ignore Tom.
No. I don’t think it balances out. It is usually still a new loss to the employee. But (a) I don’t think that is necessarily improper; and (b) to the degree that we want to avoid any loss at all I think that job is properly assigned to society, not to whatever employer happens to have hired them most recently.
I will converse with you; I will exchange snarky comments with you; I won’t do both. Your call.
Um, what? You mean, no one other than almost everyone on this board; many feminists; many Democrats, and a ton of other folks?
Yup.
I’m sure they would. Most people want job security. At least until they hire someone, at which point those principles become a lot stickier.
You know one thing that really bugs me in this thread?
It’s the constant statement (by you and others) that if I disagree with you it’s because I don’t know enough. Hardly anyone seems to even acknowledge the possibilities other than that, including but by no means limited to the possibilities that I know more than you do, not less, or, obviously (I hope) that I simply have a different analysis.
Look: if you want to present facts, go nuts. If you want to ask me whether I know both sides: yes, I do; and in fact I strongly suspect that I know more about it than you do (how well, really, do you know the opposing side of your argument?) But don’t give me the BS line that I’m only disagreeing because I don’t know the real facts. Suing employers is a big part of my job; defending employees is another big part. I’m good at it. I probably know a hell of a lot more about this than you do.
This is very hard to do correctly and few people do a good job. Not to mention that it is often restricted in scope.
Yup. And interestingly enough, those EEs often support the management when they are fighting someone who wants to keep a job.
You understand this is an example, not “the way that things always work,” right?
Sometimes it works that way (departmental budgeting, etc.) sometimes it does not.
Sometimes. Or sometimes it goes to hiring someone else (see above for Tom/Dick)
This isn’t a minor deal. Extra hours can radically increase the marginal income of many employees.
Which isn’t the topic of the thread and which is widely opposed by everyone, certainly including me.
The purpose of a business is, within reason, what the owners want the purpose of the business to be. That is often–but not always!!–to make money. Many people have other desires, whether it’s “be seen saying hello to customers” or “be a pillar of the community” or whatever. I don’t think anyone has suggested otherwise.
Awesome! Go start a business! Take a small paycheck and give the rest to the employees or community! Open something that serves a social need, for low pay! Lord knows I would never suggest that you shouldn’t follow your personal beliefs.
We are by no means talking about my ideal world. We’re talking about certain comp[romise solutions in real life.
Then Jerry is screwed, because he’s unemployed. (And actually you are misrepresenting my position. I don’t rely on the assumption that Jerry would get another job.)
Of course, Jenny was also unemployed, before she got hired.
If you start with “one working, one not” and you end with “one working, one not” then there is no net effect on “number of people working.”
This is not especially difficult math.
Yes, I know.
Again: Yes, I know.
Yup. I’ve worked plenty of MW jobs in my life, though I’m not doing so now.
If you look at your thread it’s hard to see why not, because other than generic “this won’t work out for them” comments you haven’t actually dealt with specifics very well. I don’t pretend that things aren’t worse for Tom. But they’re balanced to some degree by Dick.
It’s more of a pendulum.
The employers started with all of the power and abused it, so eventually the government and courts got around to supporting unions. But the unions got power–perhaps a bit too much, in some cases–and also abused it. (No real surprise. Union members and union bosses and business owners are just people. Greed and entitlement are not employer problems, they’re people problems.) So the pendulum has swung the other way. Eventually it will swing back.
Personally I would prefer to find a happier medium.
Just so I can make sure that i’m reading this right: Are you suggesting that the loss of the middle class was a result of the loss of unions, not the result of a ton of complex factors relating to the global and US economy, or a variety of other issues?
Oh, piss off. This sort of high and mighty thing is bloody ridiculous: if you want to talk specifics go ahead but i’m not going to engage in either defending or joining in similar attacks, tempting though it is.
Another example of why employees need strong protections against being fired for speech off the job: An African-American dentist, posting about racial issues in the context of Ferguson, has her partnership offer revoked and is let go from a dental practice when the other partners’ hired snoop rats out her friends-only Facebook posts. Previously she was criticized by them for supporting Obama.
http://blackgirlnerds.com/racial-discrimination-resignation-dr-misee-harris-open-letter-media/
This sort of hyperbole and misreporting is why these “we should all protest this injustice!” stuff needs to be scrutinized carefully.
The linked post is, of course, presenting only one side. And an incomplete side at that. It presumes that none of the stuff she said was actually an issue*, although it only presents a single (presumably cherry-picked) example and therefore it is likely that the example represents somewhere at the bottom of the scale.
But even with that caveat, your reporting leaves something to be desired.
You said:
The post said
You said
The post said
It would have been SO EASY for you to actually present the (non-objective) facts without elaborating further. Why didn’t you do that?
Anyway.
Was she discriminated against because she was black? Yes, probably. It certainly sounds like she was. I’d take that case. But the mere fact that she was advocating** isn’t enough to know for sure.
How do you think this should come out, generally speaking?***
*Perhaps we disagree, but IMO speech can simultaneously be political and offensive enough to get you fired. The fact that she was writing about Ferguson doesn’t give her a free pass to say anything she wants, any more than a white store owner would have had a free pass writing about the LA riots.
**It doesn’t matter that she is black, legally speaking. I know that some theorists assert that only whites can be racist, but the law doesn’t make that distinction. Sweeping statements about “white people” or “black people” can certainly be a problem, and I am a bit curious to know what all of the other, undisclosed, statements were.
***Should a bunch of black dentists be required to become (or stay) partners with a white dude who works on the David Duke campaign; publicly states that “black culture is the root of all black problems;” thinks The Bell Curve was great; and who posts snarky comments about such things on Facebook? I sure as hell don’t think so. Do you?
On reread, I don’t think my post is clear. To clarify:
It sounds like she was discriminated against on account of her race. IOW, her employers took action against her because of who she WAS, not what she DID. That is–and should be–illegal. People are who they are.
However, the fact that she was probably discriminated against because she WAS black should not be relied on to suggest that everything that she DID should be protected in a general sense. Even if she asserts that she did those things as a result of being black. Because it is, after all, a basic tenet of anti-discrimination law that “who you are” and “what you do” are not the same thing.
Given that lack of distinction, if you want to defend the ability of someone to make broad racial statements (justified or not) then you must be willing to do so even when the offended party is an otherwise-oppressed minority. Personally, I don’t think it’s reasonable to do so.
Nothing on Facebook is personal and private. Nothing on the Internet, in fact, is personal or private. This is a fact well known to every entertainer (actors, professional athletes, etc.) and politician out there. If Dr. Harris, a person who has been on a very popular TV show and who is either married to or living with someone in the entertainment business, thinks that this does not apply to her then she is operating under some illusion of privilege. Does anyone on this blog think that any parts of their Internet presence is personal and private? And none of us have anywhere near the degree of fame that this woman has. I cannot decide if she is foolish, ignorant, or both. There’s no reasonable expectation of privacy on the Internet. High dudgeon about supposed betrayal fills up much of this posting but actually puts the woman in a bad light and is in any case irrelevant to the merits of whether or not it was legitimate to fire her.
As to the circumstances of her employment, there’s two aspects to it. “Partner” is reasonably equivalent to part-owner. That gets into freedom of association issues, I think, so I should think that a refusal to extend a partnership offer (or the recission of one already offered) is not going to be successfully actionable. Firing her from her associate’s position – where she’s simply an employee – is more questionable. The problem there is that she’s so high profile that controversial statements by her can affect her employer’s business. Every single associate there could have published the same thing she did – but 99.9999+% of people will only know about hers. Even so, I”m not all that comfortable with her being fired on that basis.
How much of that is content dependent? Because if there’s one thing that is clear about free speech, it’s that you can’t start changing the laws based on content.
So you can’t ask “should a woman be fired for protesting Ferguson?” but rather “can someone be fired for speech outside the job, whatever it may be?”
IOW, you can’t just say “people should be able to publicly speak out against white racism” without also saying “people should be able to publicly assert that blacks are less intelligent, more violent, culturally challenged, and all sorts of other racist things.”
Both sides have their costs. If you allow people to take some social action against bad (in your view) behavior, you give that same power to your opponents–which they will use to target your side. And if you forbid your opponents from taking action against you, then you limit yourself as well.
The functional difference is stark, though. The “limiting” side requires society to try to define acceptable and non-acceptable action, speech, and behavior. And when humans have tried to do that in the past, it has not always worked especially well–to put it mildly. That’s why the courts have developed the content-irrelevancy approach.
Having read through the whole thing, I don’t think she’s being racially discriminated against at all. It seems to me that the clear concern of her employer was not her race but the controversy that her public statements – and that’s what a Facebook page is, public statements, not private ones, despite any illusions she had to the contrary – would bring harm to the business. “Racial discrimination” is a red herring here. “Violation of her free speech rights” is a proper foundation for concern, however.
This is a really good example of two things.
On the free speech side, it’s someone who is speaking in her free time, about topics which she feels strongly about, which do not directly relate to her job, and which have obvious political relevance.
On the employment side, it’s a small business in which the speaker is (or could be) a partner. The “why does the CEO care about a janitor’s opinion?” thing don’t apply solely based on size, and the associative and comfort issues are probably higher in a partnership than anywhere else.
Elusis, you put this out there as worthy of protection. Based solely on speech (there’s no way to resolve the discrimination angle without a whole lot of guesswork, though I have a gut feeling there’s a discrimination case there somewhere) do you think she should be able to stay in the position, even if her partners want her out? Or are you presenting this as an example of frequent problems, but acknowledging that this particular incident wouldn’t violate speech because of business size?
It’s not clear to me from the article what she was doing. If she was using Facebook’s privacy settings–which it sounds like she was, since she was blocking her work colleagues from looking at things, and if the posts were public apart from the blocking her colleagues could have just logged out–then she was deliberately sharing her content only with a limited number of people. And the person who shared her content with her employer was doing the equivalent of informing them what she’d said at a gathering in her own home.
People sometimes repost things from Facebook against the wishes of the user. But saying that this makes all things on Facebook public is like saying every statement you make, no matter how few people heard you, is public, because gossip exists.
Still, it’s unclear from the language used in the article if that’s what she was doing. It’s how I interpreted it, though.
First, I would reiterate that the charge of “racial discrimination” is bogus. She was told to make a choice between making comments on social media of a particular nature or her job. She made a choice. This has to do with her comments on FB, not her race.
Second – there have been way too many celebrities who have gotten into hot water because of what they’ve put out on the Internet for anyone with a reasonable level of awareness to think that anything they put out on FB isn’t going to get publicized, no matter what strictures they put on access. Your comparison of gossip fails because there’s no physical evidence, whereas things like Twitter and FB postings, etc., can be screen printed and distributed.
Actually, yeah – that is kind of a thing. It’s long been an axiom that the only way to keep a secret is to tell no one. If you tell a few people something, you can presume that it, too, will be public at some point if either it or you become controversial. There are certain cases where you have an expectation of privacy when you tell someone something – say, your spouse, religious leader, doctor or lawyer. But otherwise, not so much, especially if you tell something to more than one person at the same time.
RonF, you say:
Part of our difference of opinion is that I think you are wildly overestimating the amount of press and recognition a reality TV contestant gets. I don’t know a good way of quantifying that.
But, also, there’s no evidence that this was actually public: it was sent to her employer, but I didn’t see anything that said the person who was screenshotting it was, say, putting it somewhere else on the Internet for anyone to find. So the idea that this was bad press for her employer seems to be wrong. (Again, there’s not a lot of info in that news article, and I sort of skimmed it anyway, so I may well be wrong.)
1. If she was told to make that choice based on her race, then it’s about race.
2. Is there something in my earlier comment that made you think my point had anything to do with race? Because you made that statement after two comments that didn’t mention race at all, so I just wanted to check (and, if it was needed, to clarify that my previous comment is totally agnostic about the personal characteristics of the person using Facebook’s privacy controls).
I can’t see any specific evidence against racial discrimination. In fact, my gut feeling is that it was. How you can go beyond “unclear” to concluding it is “bogus” confuses me. Can you explain?
Like Harlequin pointed out, discrimination is about the cause of an action. Context matters w/r/t discrimination, of course–otherwise you could always make up a retroactive justification for any act. They certainly appear to have done some things which, as a general rule, are at least similar to some discrimination, so I don’t see how you could conclude that there was definitely no motive at all.
Whether it WAS discriminatory would require evidence we don’t have. As a starting point you would have to ask them for justification and see what they say. And you would also look at comparisons (if they would treat Elusis the same way then it would support the claim of viewpoint and not race.) but there’s no evidence there either way which is why “bogus” is, well… bogus.
So, for example, you also get things like this:
Of course, but there should still be a distinction between what’s *intended* to be private and what’s *intended* to be public. A large part of the reason employers are considered to have an interest in what people say online is because it has the potential to affect the employer’s reputation. The more diligent someone is about creating separation between their employer and their personal speech in their free time, the more tenuous that supposed interest becomes. A public Facebook post by someone whose profile identifies them as an employee of ABC Corp is a lot more relevant to the company’s interests than a friends-only post that has no apparent association with the employer. Even less relevant is a private email or a pseudonymous blog post.
As a non-internet analogy, there should be a difference between an opinion expressed in a letter to the editor and an opinion expressed while sitting on your front porch. Yes, the person you’re talking to could repeat it, or someone passing by could stop to listen. But it takes actual digging, either by the employer or by someone else, to even connect those comments with your job.
Things on the internet that are intended to be limited in distribution generally only become public because people are dishonest. (If Facebook changes privacy settings without warning, I would definitely count that as dishonest—they said they’d only show the post to certain people, then they went back on that.) Someone forwards an email or screencaps a conversation to someone it wasn’t meant for, or someone hacks into a server and steals data. Speech that was intended to be limited to a certain group of people shouldn’t be treated as if it were public just because it becomes public.
I think that’s kind of a false comparison. Anything you put on the internet *can* get publicized. That doesn’t mean it will. And the internet is such a major part of life, that it’s pretty restrictive to say “Don’t participate in this at all, or at least don’t have any controversial opinions, because someone could steal your words and provide them to your employer.”
As far as the comparison of gossip, and your comments about “the only way to keep a secret is to tell no one,” there’s not always physical evidence with spoken comments, but there certainly can be. Suppose that someone maliciously decides to audio record private conversations. I’m in my own living room, chatting with people who I think are my friends, or playing Cards Against Humanity, and one of them is sitting there with a tape recorder. They then take something off-color that I said and give the recording to the CEO of my company (probably divorced of the original context). Do you think that in that case, I should have no recourse if I’m fired? That I should have known there was a possibility that one of my friends would maliciously record me and it was my responsibility to never express any sentiment that I wouldn’t want getting back to my employer?
To me, those two situations are very analogous. Someone made a comment to what they believed was a limited audience, and someone in that audience maliciously chose to share it, to the detriment of the speaker’s career. The only thing that makes Facebook different is that the snooping is easier and most likely legal. It’s not somehow impossible offline.
I’d like to hear this explanation too. It sounds like you’re working from the presumption that racial bias is rare to nonexistent, and that absent overwhelming proof, it probably doesn’t exist.
I’m working under the presumption that racial bias is not something that should be presumed simply because disparate races are involved in a situation. Like any other motive for an action, It’s something that should not be invoked unless there’s some evidence to indicate it, and I don’t see any such here.
Huh. Well, I have to say I’m surprised. I can see “not as much evidence as we should have for the conclusion,” but I am surprised by “not even enough evidence to invoke it as a possibility.”
When you say
I entirely agree. But there’s a reason that it is “some” and not “a lot of evidence.” At the investigative stage the barrier should be very low, because it merely allows us to investigate further, find out facts, and make a subsequent conclusion. Probable cause is a light standard.
What I see here as evidence that race is involved is that it’s her opinions *specifically about racial topics* that were considered a problem.
It’s pretty clear from this bit that they’re holding her comments about racial issues to a different standard than they would hold her, or another, employee’s about other political topics. The issue is that she’s a black person who’s discussing institutionalized racism, and they’ve decided to take her opinions personally, despite her not having said anything negative about the practice, or about all white people. There’s an extra hurdle for her speech to meet that a white person’s would never have to—that white people who are completely ignorant of the issue not be able to misinterpret it as being a criticism of them personally. (And it’s not a hurdle that anybody clan clear, I don’t think. It’s pretty impossible for a black person to have an opinion about racial issues without a white person taking it as a personal affront.)
It’s also *blatantly* clear that they were looking for a reason to take issue with her, since they went to the trouble of having someone spy on her Facebook page.
To be clear, I don’t think they fired her for being black and that the “unprofessional Facebook comments” were a thinly veiled excuse for pure racial dislike. But I think that they fired her for comments that they wouldn’t be nearly as critical of if they’d come from a white person.