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I have held right wing views my entire life and have lived in left wing environments for over 20 years. I have never refused to offer my viewpoint or been dishonest about my political views. I have never had a problem in school or work in doing so. In fact, by routinely exposing my views to the scrutiny of others, and by being open about my politics, I have found that it has made me far more effective in communicating my views and far more resilient against cancel culture. I am not sure I support a legislative solution and, even if at will employment were replaced with contractual employment, I doubt it would slow this problem down very much. I say that, even though I would often recommend a clear contract over a fuzzy at will relationship.

I’d recommend that anyone who feels constrained by cancel culture start experimenting with greater openness and honesty.

You have more power than you realize. If you’re scared, be a little cautious. Do more listening than talking at first. Figure out what words resonate and what words don’t. Model empathy for others who have political views that you oppose. Be polite. Be clear about where you hold a viewpoint and what actions you would take based upon them. If you are skeptical of certain trans issues (for example) but would never try to disrespect a co-worker by calling them by a different pronoun than what they prefer, be clear that you treat people as they ask to be treated as a first principle. If you’re skeptical that a black co-worker was targeted by racism in an incident, but you can see that someone hurt their feelings or diminished their sense of self worth or made them feel powerless, acknowledge their feelings. If you can show people that you can hear them and that you care about them as a person, it buys a lot of mutual understanding.

*But*, stop hiding. Don’t lie about your views. Say something when you disagree and closely observe those who are listening. You will never be resilient if you don’t begin to inoculate yourself.

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Here's where my mind goes immediately:

1. Is job security really a widespread problem, or is our concern fed by anecdotes?

2. Would job security really promote more free thought & ideological diversity?

I'm not convinced of either.

To the first point—& pardon me if this sounds naive—I don't see a ton of evidence that this is epidemic. I hear stories like that of your electrician & I cringe, but I have to believe that business owners retain employees because they do good work. In my own business, if one of my employees went viral for something she said & it came to our clients' attention, we'd have to have a conversation about it—but honestly, isn't there a limit to how many employees can go viral? Furthermore, I can imagine *certain* beliefs my employees might hold that would genuinely compromise our revenue: I work in oil & gas, which is a political football, so if Billy Bob the Employee starts circulating petitions to ban fracking, my clients may begin to doubt whether we have their best interests at heart. Beliefs matter. So unless I see that this is causing widespread harm, any given electrician anecdote should hit the same nerve as any given hate speech anecdote—sad, but not worth creating policy around.

To the second point, we should theoretically be able to find a microcosm of this liberal paradise in the world of tenured university staff. Despite their job security, do tenured professors feel free to express unpopular opinions? The battery of anonymous open letters in the last month—to say nothing of the braver faculty whose colleagues are coming to them in secret to "thank them for their service" to the cause of liberalism—tells me otherwise. Meanwhile, the students themselves, who may not even have a job to lose, choose to stay silent in spite of the freedom their unemployment should give them. It seems to be social pressure, not professional pressure, that puts the frog in their throat.

Where my mind goes next:

Who else has tried this, & how is it going for them? You mention the employment laws of other developed countries. More info on that, please! :-)

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The dissolution of voluntary intermediary structures is certainly part of the problem. America used to be full of self-governing bodies: labor unions, fraternal orgs, literary societies, mutual insurers, religious groups, volunteer fire departments, community watch orgs, et al. In the new ultra abstracted America, the most your average spurned worker can hope for is to throw themselves on the mercy of social media and hope that someone will start a petition or a Go Fund Me in their name. Sometimes this works (and it's great when it does), but this model will never replace communities of mutual aid and support, filled with people who actually care about each other, in the actual real world.

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I don't believe I've ever read a set of more thoughtfully conceived responses to an online opinion piece since the internet became a thing. It's as if the writers actually care about persuading their readers. Brilliant! If this pattern holds then Yascha's experiment will have been soundly vindicated.

With respect to Zaid's argument for legislative constraints on at-will employment, we are - as many posters note - seriously lacking in data. People recall the extreme cases, like the unfortunate electrician whose fingers weren't properly configured while resting on his vehicle window. But the sad absurdity of that whole situation and the scattering of similarly tragic and/or absurd cases seem like thin planks on which to construct legislative architecture. The murkiness suggests a general principle of self-government: because laws are a crude and often problematic way to address breakdowns in civic relations, proponents of new laws have a duty to demonstrate that the problems they hope to address are actual problems, with reasonably well understood scope. If data exists to show that a significant number of people are losing their jobs unjustly because of opinions they expressed then we have something real with which to contend. Mr. Jilani writes "Just cause would help to reduce the number of capricious firings." and this may well be so. However if the purpose of a proposed law is to reduce a phenomenon significantly the proponent of that law bears some responsibility to measure - convincingly - the magnitude of the thing. And, if the law is enacted and it fails, or succeeds marginally, we will then have some basis on which to amend or repeal it. Absent something like actual numbers none of this is possible.

A reasonable counterargument in this case is that the data will never show such a thing, because it is the fear of losing employment which stifles the speech which would produce the firing which would produce the data, and the proposed law is designed to address that fear. It's logical, and fair enough. But then we find ourselves arguing for a law whose purpose is not actually to reduce an undesirable phenomenon (capricious firing on the basis of political opinion) but to increase a supposedly desirable one: the free expression of unpopular or heterodox opinion in the workplace. I will leave it up to others to decide whether this is a good thing, but it is a strange use of laws, which are broadly effective when they more or less express the "sense of the culture" rather than when they seek to reform it. There are important exceptions (the Civil Rights Act might be one) but they are rare.

I actually think that Mr. Jilani's hope - and it is one shared by practically everyone who breathes - is that people would become braver. Articulating an unpopular point of view is terrifying. Learning how to make a coherent argument for an unpopular view is difficult, and takes time. Persuasion, after all, is an art, not an algorithm. Few of us are born with it. The world most of us would like to see is one in which more of us are more brave and more artful in advocating for whatever is good as we have come to know it. People reading this are almost certainly in that camp. Bravery and skill, unfortunately, cannot be legislated.

All said, congratulations to Zaid for tackling this one, and producing an occasion for us all to think more clearly about speech in the workplace. It's great to be here.

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This is well intentioned, but there are several reasons why fixing our cultural norms, and/or alternative policy solutions, are preferable to government regulation here.

1. As a former hiring (and firing) manager I can testify how much harder it is to deal with people who are a poor fit for your team when you have to jump through months' worth of procedural hoops in order to get them out. The implicit due process requirements already produced by the threat of wrongful termination lawsuits are already very costly to day-to-day management efficiency, and an explicit just cause requirement only makes it worse. I've seen clearly counterproductive projects go forward because the alternative would be firing or reassigning employees subject to EU just cause requirements, and those requirements were just too burdensome to meet.

2. On the other hand, an employer that really wants to fire someone for troublesome political views can and will eventually find other excuses to do so. So the law is likely to be both burdensome and ineffective.

3. In general when you want to avoid people suffering bad consequences from job loss, it's much more efficient and more equitable to mitigate those consequences by providing income supports and promoting competition in the labor market than it is to make it harder for employers to fire people. The more people know that they'll be fine if they lose their job-- they'll have benefits to tide them over and they can easily get a different job-- the less they can be intimidated by a firing threat.

4. The article admits that multiple carveouts will be needed, and this is a bad "law smell" (by analogy to "code smells") for Hayekian reasons: laws should be simple generally applicable principles and when you have to make lots of exceptions, it's probably because the principle is not a good aim for lawmaking. The exceptions can and will be gamed, and trying to prevent that gaming will just make the law even more complicated and burdensome. AB5 in California is an egregious recent example of this: also motivated by trying to protect vulnerable workers-- in this case by classifying them as employees rather than independent contractors-- it ends up screwing with all sorts of people's livelihoods when a contractor model really does make sense for them, so it has literally dozens of carveouts: and those don't exhaust the set for which carveouts are needed even now, and certainly will not five years from now as new professions come into being.

And there are really hard cases to consider beyond the carveouts Jilani suggests. Suppose for example that someone is hired as a diversity and inclusion director at a major company, and tweets on their private account, outside of work, about how diversity measures are a left-wing scam and just result in a lower hiring bar, and links to James Damore's infamous manifesto. Now that's clearly political expression outside of work, and you might well want to protect someone in an unrelated role from being fired for this-- the sort of people who join cancellation mobs might well think that anyone in any role at any company *should* be fired for expressing such a sentiment in any context, and part of the point of the law is to push back on that. But it does seem to me like a pretty good demonstration that that person is not a good fit for the job of diversity and inclusion director, even in the absence of demonstrated on-the-job misconduct by that person! How do you make a carveout that says that the company can fire that person and leaves the core of the law intact? If you don't like this particular example, substitute some other role-related expression for a different role; the idea is the same.

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I am all in favor of employee protection, but you also have to be wary of overcorrecting. For instance, I work in the public sector in Ireland, and the combination of unions and employment laws like you are suggesting have resulted in a situation where the process of letting someone go is so onerous that they avoid it at all costs, even if the person is incompetent, and sometimes problematic people are promoted in order to move them out of a department rather than dismiss them.

Personally, I don't think at-will employment should be ended but the ability to sue for wrongful dismissal should be beefed up. The burden of proof should be very high for employers and the penalties harsh if they dismiss for an illegitimate reason.

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The past few weeks have made me think about my company and job, and it's direction towards inclusivity and diversity, and the approach it may take for that. For example, I don't believe that only progressive/left wing viewpoints are the only ones to be considered when discussing race and diversity, however those positions control the narrative at this point, and are considered the de facto reasoning.

What if my company forced me to attend diversity seminars solely focused on White Fragility and How to Be an Anti-Racist teachings. I would understand my company's intention, but I wholly disagree with the means. What would happen to me if I objected to participate? If I spoke out against this in a company forum? Would my political opinions be respected? Would I be labeled a racist thus immediately fireable?

These are not unimportant discussions and feelings that many in corporate America are having, especially with the current racial zeitgeist.

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This is absolutely wrong. A private company should have the absolute right (with or without certain specific exemptions) to terminate an employee, as long as it's done in a manner consistent with the contract between the parties. If someone's employment needs to not be at-will, that should be because of the contract, not because of some illiberal law. (Yes, there is a difference in power, but that is as it should be -- one regular (and not exceptional) employee having as much negotiating power as a big organization would be odd. Solution is for many such employees to band together -- I do not mean unions as they exist today, because they have their own issues, specifically the laws that mandate there can be just one union, and any laws whatsoever that recognize "union" as its own legal entity.)

Freedom of association is just as important of freedom of speech (both are negative rights). When I subscribed to Persuasion, I did not anticipate pieces which would argue for more government power over people. But not going to unsubscribe either!

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Do we have data to suggest cancel culture is so widespread that we should be resorting to legislative action?

What percentage of the population are afraid of sharing their political views for fear of professional repercussions? How has this changed over time? What industries are most affected? How many people have actually been cancelled in those industries?

Every article keeps referring to the same examples, like the electrician. Are we panicking over a few egregious incidents or are people indeed being cancelled at a rate that deserves this response.

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The solution offered here cites two obvious objections, and does not convincingly address either of them.

To the concern that "some organizations have a legitimate interest in ensuring that their employees share a broad worldview," Jilani suggests a carve-out for "explicitly political organizations" that would allow them to discriminate against political beliefs. So who qualifies as an "explicitly political organization"? The New York Times circa 2020 could describe themselves as such, plausibly, and we're back to people getting fired for insufficient wokeness. And why is there only a carve-out for politics? Why, for instance, should a religious organization be obliged to employ non-believers?

To the other concern, that someone moved to racist taunts would be protected under the proposed legislation, Jilani suggests more legislation to deal with that shortcoming. Now we're patching up a law with more laws, which will have their own side effects - who decides what qualifies as a racist taunt? - and off we go into the Land of Perverse Externalities.

I hate seeing people get fired for reasons of conscience and idiotic misunderstandings, but companies who do so are harming themselves economically by making hiring decisions based on something other than the quality of labor. This will, slowly and painfully, correct itself in the long term. Tacitly or actually publicly-funded entities, including academia, are another story.

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I like the idea, but I am curious how effective this would be.

In California, it is already illegal to fire someone for their Political Beliefs or activities (https://www.shouselaw.com/ca/labor/harassment/political-retaliation/). However, Emmanuel Cafferty (who's story is here https://www.theatlantic.com/ideas/archive/2020/06/stop-firing-innocent/613615/) was employed by a California company in California.

Similarly, it wouldn't prevent workplaces from turning hostile -- while someone may not loose their job immediately, they may now be subject to a culture of harassment with limited legal resource. I used to work at a large tech corporation -- while they didn't fire people for wrongthink, they would essentially force them through a gambit of harassment, struggle sessions, and public shaming

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I am struggling with this issue myself but offer a few thoughts (and no firm opinions):

(1) the number of people outright fired for expressing political wrong think is likely very small - in a quite liberal area in an industry thats thoroughly left dominated (at least in what people say in public) i know none. And yet everyone i know with non-conforming views is afraid of it and silent. Perhaps we are wrong to be. Or perhaps the occasional incidents - and just taking our leftist colleagues at their word about what they believe to be hate and violence - produces a stochastic terror that forces broad silence. I suspect this is more marked in white collar high paying fields that recruit heavily out of elite universities and so cater to that culture.

(2) Deciding who to trust with executing on your business may be commercial but it is also profoundly personal. It places your own economic well being as an owner or prospects as a supervisor in the hands of another. To force someone to employ those they no longer wish to is an invasion of liberty that should not be handwaved away. I have always favored at will employment and a high bar for discrimination protection (only against discrimination that is truly endemic) as a result. I am weighing and reconsidering in current times but also reluctant to break long held principles simply because it's me on the line.

(3) Is political identity discrimination so endemic that we need this protection to not broadly close the labor market to some groups (or greatly restrict their options)? I think probably not the way it has been for other groups we have sought to protect, no. But is there a further national interest beyond mere commercial non-destruction of a group at play in this particular case to justify the specific governmental incursion of prohibiting political firings? Perhaps there is a strong interest in forcing a politically open marketplace and relegating that outside the political sphere.

(4) And yet once a protection is made it is unlikely to be unmade. If we unveil broad protections today to address a still nascent crisis and then the fever breaks... we may find ourselves saddled forever with a restriction that has outlived its cause. That too must be considered.

Much to think about.

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I'm not sure that this article address the real problem. either the problem statement or the proposed solution. In my opinion we can't legislate away fear, we can't pass legislation to make people listen to different ideas and we can't legislate understanding or compassion.

What we can do is demand more from our school system.

I was asked in 2017 to participate as a judge at a middle school event for my daughter. Half the teams had to put together a proposal for renewable energy, farming, transportation etc. I had to go to each team, maybe 20 presentations. I would listen to the team that made the proposal and then listen to the team who's job it was to present why that particular proposal was wrong/ wouldn't work etc. At the end I would ask the opposing team what they would recommend then if they were against that particular proposal. In each case I was told that wasn't their job, their job was to "take down" the other teams proposal, not make it better.

I was stunned by the response, this is a grade 8 class, and in grade 8 I am seeing exactly what we see in congress every day. We are building the next generation of leaders to be no better or maybe worse than the current generation of leaders

If we teach people to listen to new ideas, teach people to listen to "different people" and most importantly how to provide constructive feedback rather than just dismissing an idea, and teach people how to interpret and understand what they just heard, decide if it is real or fake, better or worse based on a set of criteria, we won't need to legislate cancel culture.

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founding

Thanks for the article. Both decreasing at-will employment contracts and viewpoint discrimination in the workplace seem like good ideas, although it will be interesting to see how they both translate into policy. Ending at-will employment strikes me as beneficial not only for putting the brakes on cancel culture, but also for the growing number of gig economy workers who don't have the benefit of trade unions negotiating on their behalf. This would have also been beneficial during this pandemic, strengthening the connection between workers and their employers during turbulent times. One criticism might be that this would help large companies at the expense of small businesses, which by their nature require more flexibility and have less resources to invest in HR matters.

I am more ambivalent about public policy as a mechanism for prohibiting viewpoint discrimination. It seems like it would be hard to craft language that is specific enough to be useful, and my gut feeling is that this is the type of regulation which gets turned around and used in ways contrary to its intended purpose, but I'm open to being persuaded otherwise.

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The best system for handling political speech in a work setting is not something I've thought deeply about.

To date the de facto policy of office environments I've been in is to avoid discussing religion and politics. This always seemed prudent to me, as a way to separate professional matters from political matters. Would a policy, regarding political affiliation, of "Don't ask, Don't tell" during office hours be sufficient protection against cancel culture dismissals? Would the kind of legal protections proposed in this article allow such a policy, or would they require positive protection of (non-harassing) political speech?

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I have a number of questions about this proposal, but I'll start with:

California already has political activity protection for employees, in some form.

https://www.shouselaw.com/ca/labor/harassment/political-retaliation/

Is it working? Is it getting enforced? (Does it apply to cases where an employer gives in to external pressure or a boycott threat related to an employee's expression? In that case it seems like the employer might argue that the employee is being fired as a PR liability, not because of his or her opinions.)

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