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.
I've been coming to a similar realization and would say I am at the beginning of desensitizing myself to sharing my views. The process is remarkably similar to cognitive-behavioral therapy techniques I've used for general social anxieties. I think I've allowed this one to fester because SO many people feel the same way so it is easier to diagnose it as a larger societal issue. I have found that individual face-to-face and phone conversations are a good low-stakes first steps. I figure by doing so I am disrupting my own fear-based-pattern and the echo-chamber of whomever I am talking to.
This is a great point. It fits my experience as well. The most effective approach I’ve found is to ground these conversations at the most granular and specific level I can find. I avoid policy theory as a starter. It’s too abstract and too susceptible to ideological gamesmanship. Hypotheticals are another trap to avoid for the same reason. What works for me is to ask - genuinely, not rhetorically - about the thinking and motivation of individuals the person I’m speaking with knows personally. My intent is to ground the conversation in the territory of the actual world the person I’m speaking with knows. The grip of ideological possession tends to loosen for most of us when we consider individuals with whom we have a direct relationship. “Do you know anyone who <supports/opposes> <candidate/policy/organization> who you disagree with? Do you think you could explain their thinking about the <topic>? What IS their thinking about the topic? Would it be interesting or useful to know more about why they think the way they do?” And of course, if the person claims to know noone who sees the world differently than they do with respect to the subject you can let them know they actually do, and offer yourself as such a person, if they’re interested in hearing more. And if they are - and only if they are - you have a chance for an actual conversation.
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! :-)
To answer point 1 I would suggest that the impact of these incidents goes far beyond the people that are directly affected. This will obviously vary significantly by place of employment but I'm a medical resident and virtually all of my colleagues seem to take it as a given that to publicly state political opinions that go against the perceived zeitgeist is to risk your career. In this case they are often less concerned by the possibility of getting fired than they are by the reaction of potential future employers/ fellowship positions which is a concern that this solution would not address.
I think you're probably correct that this problem isn't actually as big as many believe based on anecdotes, and I would add that it's almost certainly focused in high-status jobs like mine- it is not something the average joe normally needs to worry about, but I think that both of those things actually make the problem worse not better. Cancellations can be relatively rare events but still effectively send a signal that constrains free speech across huge segments of society, and the fact that this culture is focused in influential, high-status institutions means both that the signal of each individual incident gets broadcast further and that the paranoid mindset that this situation promotes affects those with their hands directly on the steering wheels of our culture.
That's a great point. It reminds me a little of what Sam Harris has said re: mass shootings: they're such a small portion of gun deaths (like, rounding error small) but they're uniquely chilling & can significantly shake up public perceptions of safety.
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.
I really like your point about mutual aid societies. Mutual insurance societies seem like the best antidote to the frustrations we feel from the large, ungainly insurance companies so prevalent today.
The centralization of authority and influence over individuals' lives is perhaps the key issue. By devolving power away from corporations, government, and large educational institutions, and increasing the buying power and optionality accessible to individuals, small businesses, guilds, and partnerships, the self-amplifying negative ramifications of shunning will be minimized or localized.
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.
Had the same thought that you outlined in your first paragraph. This is the most nuanced comment section I've ever seen. I was weary when I saw that so far the only means of "community" on here is via comment sections, but so far I'm not disappointed. I hope that Yascha and team might find other methods besides comment sections to develop community on here - I'm sure they will - but for now it's great to see very well-reasoned and thought-out responses and discussions. Hope it remains this way. I see comment sections and I immediately assume the worst, as we at this point have been conditioned by the trollish vitriol of the main social media platforms' comment sections.
Good point about lack of data. And this: "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."
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.
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.
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.
I always recommend going, but then being honest with people in the sessions or afterwards if there is no participation opportunity. I won’t pretend it is easy. I’m trained as a lawyer and have 20+ years of experience presenting right wing ideas in left wing spaces. The only way to develop resilience against this fear is to experiment with it. I’m at the point where I’m comfortable expressing almost any view at work, but I do exercise care in how I express my point of view. I also listen carefully to people who criticize me. Understanding their approach to a problem is critical to finding the words that will most effectively communicate my point of view to them.
I have had the same thought. I think I would decline to go and if i went politely decline to participate other than listening. I suspect that would suffice - Sadly there's so much interest space would probably be limited and so unlikely to be mandatory...
The ability to safely step back from DEI training depends very strongly on one's status within the organization. An older white male lawyer, probably highly-compensated, is going to be cut a lot more slack if he chooses not to participate than someone younger, and/or a woman (we don't get much room to dissent from anything at all before the hammer comes down), and/or someone on a lower echelon who is seen as more expendable.
So, those of you who are thinking about taking a personal stand on this: don't do it alone. See if you can create enough of a wave that others who don't have your status can draft off you, too. Build a posse. Use your status to protect others who agree with you, but have more to lose.
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!
I absolutely agree. Advocacy for more government intervention is the opposite of what I expected initially from this writer community. The last few years (or decades, really) we have seen, tragically, what happens when an institution with unrivaled power (the U.S. government) is corrupted from the inside out. Imbuing it with more immunity, influence, and bureaucracy does not seem to serve the right purposes.
You know what would help protect diversity of opinion? Decoupling livelihoods from employment.
If people worked for themselves more, instead of working for big corporations, that would address cancel culture's threat to employment by removing the fear of reprisal for sharing out-of-vogue opinions. The problem is that we now not only have leased our 8 hours a day of time to the company, but also represent them at all times outside of work. Hence we are expected to parrot whatever the CEO thinks customers want to hear. Ever since industrialization this has been the case, but because of social media, public scrutiny is extremely easy now.
This is perhaps a self-regulating mechanism. If literally nobody wants to work with you or pay you for your services, then you starve or change your behavior. That’s market forces working to express societal values. Ways by which this re-tooling of capitalism towards a more distributed economy are not as complicated as it might seem. With a mechanism such as a citizens' dividend (UBI) and a redistributive but not punitive funding mechanism such as a revenue tax (VAT), this can be achieved.
Those who are interested in learning more about this can look up distributism (a Catholic-origin governance philosophy advocating devolution of agency and authority from corporate and government institutions towards individuals and family units) and "The War On Normal People" by Andrew Yang.
I agree. I would favor clear contracts between employers and employees over at will employment, but as a voluntary business matter - not as a mater of public policy.
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.
With regard to your final point I believe you are unfortunately wrong. History has shown that the balance of economic power between employers and employees almost always favors the employer so much that, absent government intervention, employers rarely face significant consequences for trampling on the rights of workers. If the invisible hand were enough to make employers treat their workers fairly we wouldn't have needed the labor movement.
The labor movement has also been a rich source of perverse externalities. Even so, given the track record of governments throughout history regarding compelled speech, compelled silence, compelled association, and compelled ostracism, I'd rather take my chances with the market.
So would you support repealing all the laws that currently prevent employers from terminating an employee on the basis of race, sex or any other currently protected characteristic? Or the laws that protect workers from sexual harassment by employers? Not a rhetorical question, meant seriously. I am sympathetic to concerns about unintended consequences and I definitely think that the US in particular has far too many burdensome and often redundant regulations but I believe you can be conscious of those concerns while still believing that such regulations serve a purpose just as you can attempt to reduce and reform police corruption and brutality without thinking that abolishing the police is a good idea. I would also point out that none of this would be compelled speech, compelled silence or compelled ostracism and it wouldn't fit my typical definition of compelled association either though I can see the case for that perspective. It would simply be another protection on worker's rights. As for the labor movement I find that it is much like the nation states that are coming in for so much criticism from the left nowadays. It has a long and complicated history and that history includes much that is racist, corrupt, stupid, and simply regrettable. But like with Canada or the United states themselves it is easy to overlook the positive impact it has on our lives simply because it now forms the backdrop of things that we take for granted. Do we like weekends? Do we like the concept of sick leave? Maternity leave? I don't know where you are writing from but from where I stand there are many social achievements of both labor unions and government regulation that appear to me to be clearly beneficial on net and next to impossible to accomplish through the incentives of pure market capitalism.
"So would you support repealing all the laws that currently prevent employers from terminating an employee on the basis of race, sex or any other currently protected characteristic? Or the laws that protect workers from sexual harassment by employers?"
I would, but I'm an anarchist, and I understand if people don't want to go all the way there with me. I agree that such laws have produced benefits. Your point that this scenario relates most closely to compelled association is well taken, though the other pieces are related. I would just encourage contemplation as to whether we can really know if such regulations are beneficial on net. Bastiat's admonition to consider the unseen applies here. There is much we don't see.
The labor movement was started 100 years ago. Different time, different place, different circumstances. With that said I had a conversation on this maybe 30 years ago and stated “ we don’t need unions anymore, people know their rights, government has a lot of policies in place to protect workers etc. the woman I was having the conversation with stated “I do and so do most women” and then I listened for an hour.
Legislation and rules are needed, and I should have made that clear in my post, but legislation can’t fix everything.
That's actually a really interesting point. Maybe this is just because I recently read Peter Turchin's works but I'm definitely not the first to point out certain similarities between our current period and the gilded age which produced the original labor movement. Turchin would say that this is because the current period and the gilded age each represented the nadir of a secular cycle. Whether or not you agree with Turchin it's possible to make an argument that the day for Unions has come and gone and come again.
I think the second concern could be better addressed by making it so that laws against political discrimination would apply only to behavior outside the work place. IMO your employer has a right to tell you what political opinions you can express when you're on their time, it's when employers or others start policing your own private political opinions that we get into a dangerous place. This would mean that work-place harassment could not be protected by a rule against 'political harassment' because it would occur at the workplace.
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
I also like the concept. I haven't heard it presented in this way. However, the largest issue with "cancel culture" isn't the "cancel" part, it is that the ideology that employs these tactics employ them as power moves. Honesty, dishonesty are all secondary to power. So I second that while I like the idea, I don't think addresses the core problem. "cancel culture" is the symptom of "power culture". I would bring up the (UK) case of Maya Forstater where she lost her objection despite ostensible protections.
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.
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.
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.
The model where the negative side wins if it defeats the affirmative side's plan or proposal has been a pretty standard feature of debate societies for decades. When I debated in high school, I understood it as a burden-of-proof issue similar to that in a legal trial.
I know there have been a lot of criticisms of the way that organized academic debate has moved away from persuasion and argument as they would ordinarily be understood in real life (including what might be called "gotcha" elements). And also the highest levels of college debate have started included a lot of arguments based on finding fault with opponents' mindsets, assumptions, cultures, language, etc., which does seem to mirror some political phenomena in the culture today. But I find it hard to accept the idea that the debate skill of identifying problems in someone else's proposal, without necessarily offering a counterproposal, is itself to blame for problems of discourse or polarization or whatever. The affirmative's burden of proof is just so traditional in debate.
Also, many correct criticisms of arguments don't entail a better alternative. For example, some problems might be unsolvable, or unsolvable at a particular point in time, or none of the participants in the conversation might have the knowledge or wisdom to identify a solution.
(I agree, though, that schools should probably also teach people to listen better and disagree better -- at least if we know what that consists of and how it can be taught!)
You are correct, I was in debate clubs in school. I just didn’t “see” it that way. What I saw and what I see daily are ideas being shot down and no real alternatives being offered, check out WHO on masks debate, CDC on masks, current senate and house on any idea. We have created this culture and it continues to grow. We’ve lost the ability to compromise which is more or less feeding the cancel culture we are probably supposed to be talking about :)
Wow, that middle school story is super disheartening. I wonder how common that is.
I'm no psychologist, but I wonder how much of these bad listening skills are taught & how much are just human nature. It takes some balls to field criticism graciously. And it takes real time & thought to criticize constructively.
In debate that I did growing up, the default for the negative was to defend the status quo. An alternative was to offer a critique and counter-plan. The best debate teams offered the critique and counter-plan , but it is challenging due to time constraints and unfavorably shifts the burden of proof. If those kids weren’t being taught that, it’s unfortunate. In 8th grade, they may have rules to prevent it to keep the format simpler, but I’m sure it still exists in many forms of debate in high school.
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.
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?
I think the main cancel pattern today is about people saying things *outside of work* that others (sometimes coworkers but more often non-coworkers) pressure their employers to fire them for. Limiting political conversations in the workplace, while it might have other kinds of benefits, probably won't protect against this dynamic.
Maybe the question of political expression at work could be subdivided like
* what kind of political expression should the law require employers to allow (or forbid) at work?
* what kind of political expression is it prudent for employers to allow (or forbid) at work?
While far from perfect, the US federal government has a system much like you suggest. Political activity in the workplace is basically forbidden, full stop. Employees' 1st amendment rights are well protected outside the workplace. Sanjour vs EPA is a case where employees were found to have the right to accept travel payments as facilitating payments for protected speech, even, or even especially, where that speech is critical of the employing agency. Pickering is the better known case, but Sanjour is really worth a read to see how this might work in practice.
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.)
Social media mobs rise with a fury and tend to disappear pretty quickly once they have run their course. At least we should help give employers an excuse to delay making their decision until the storm has passed.
I think the employer protections are actually the main benefit of legislation like this. And those protections would also benefit employees.
In many instances, it’s simply easier for an employer to terminate an employee at the will of the mob than it is to risk the PR disaster the comes from due process.
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.
I could not agree with this more.
"You have more power than you realize."
I've been coming to a similar realization and would say I am at the beginning of desensitizing myself to sharing my views. The process is remarkably similar to cognitive-behavioral therapy techniques I've used for general social anxieties. I think I've allowed this one to fester because SO many people feel the same way so it is easier to diagnose it as a larger societal issue. I have found that individual face-to-face and phone conversations are a good low-stakes first steps. I figure by doing so I am disrupting my own fear-based-pattern and the echo-chamber of whomever I am talking to.
This is a great point. It fits my experience as well. The most effective approach I’ve found is to ground these conversations at the most granular and specific level I can find. I avoid policy theory as a starter. It’s too abstract and too susceptible to ideological gamesmanship. Hypotheticals are another trap to avoid for the same reason. What works for me is to ask - genuinely, not rhetorically - about the thinking and motivation of individuals the person I’m speaking with knows personally. My intent is to ground the conversation in the territory of the actual world the person I’m speaking with knows. The grip of ideological possession tends to loosen for most of us when we consider individuals with whom we have a direct relationship. “Do you know anyone who <supports/opposes> <candidate/policy/organization> who you disagree with? Do you think you could explain their thinking about the <topic>? What IS their thinking about the topic? Would it be interesting or useful to know more about why they think the way they do?” And of course, if the person claims to know noone who sees the world differently than they do with respect to the subject you can let them know they actually do, and offer yourself as such a person, if they’re interested in hearing more. And if they are - and only if they are - you have a chance for an actual conversation.
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! :-)
To answer point 1 I would suggest that the impact of these incidents goes far beyond the people that are directly affected. This will obviously vary significantly by place of employment but I'm a medical resident and virtually all of my colleagues seem to take it as a given that to publicly state political opinions that go against the perceived zeitgeist is to risk your career. In this case they are often less concerned by the possibility of getting fired than they are by the reaction of potential future employers/ fellowship positions which is a concern that this solution would not address.
I think you're probably correct that this problem isn't actually as big as many believe based on anecdotes, and I would add that it's almost certainly focused in high-status jobs like mine- it is not something the average joe normally needs to worry about, but I think that both of those things actually make the problem worse not better. Cancellations can be relatively rare events but still effectively send a signal that constrains free speech across huge segments of society, and the fact that this culture is focused in influential, high-status institutions means both that the signal of each individual incident gets broadcast further and that the paranoid mindset that this situation promotes affects those with their hands directly on the steering wheels of our culture.
That's a great point. It reminds me a little of what Sam Harris has said re: mass shootings: they're such a small portion of gun deaths (like, rounding error small) but they're uniquely chilling & can significantly shake up public perceptions of safety.
I would ask you: Are these "political" opinions or values statements that are problematic?
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.
Facts.
I really like your point about mutual aid societies. Mutual insurance societies seem like the best antidote to the frustrations we feel from the large, ungainly insurance companies so prevalent today.
The centralization of authority and influence over individuals' lives is perhaps the key issue. By devolving power away from corporations, government, and large educational institutions, and increasing the buying power and optionality accessible to individuals, small businesses, guilds, and partnerships, the self-amplifying negative ramifications of shunning will be minimized or localized.
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.
Had the same thought that you outlined in your first paragraph. This is the most nuanced comment section I've ever seen. I was weary when I saw that so far the only means of "community" on here is via comment sections, but so far I'm not disappointed. I hope that Yascha and team might find other methods besides comment sections to develop community on here - I'm sure they will - but for now it's great to see very well-reasoned and thought-out responses and discussions. Hope it remains this way. I see comment sections and I immediately assume the worst, as we at this point have been conditioned by the trollish vitriol of the main social media platforms' comment sections.
Amen, brother!
Let's get some live events going once we're out of the corona woods. :)
Good point about lack of data. And this: "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."
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.
You had me at "Hayekian." All four of these points are great. Thanks for putting them out there!
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.
Would love to learn more about Ireland.
It's all online if you want to take a deep dive. https://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/employment_rights_and_duties/employment_law_update.html
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.
I always recommend going, but then being honest with people in the sessions or afterwards if there is no participation opportunity. I won’t pretend it is easy. I’m trained as a lawyer and have 20+ years of experience presenting right wing ideas in left wing spaces. The only way to develop resilience against this fear is to experiment with it. I’m at the point where I’m comfortable expressing almost any view at work, but I do exercise care in how I express my point of view. I also listen carefully to people who criticize me. Understanding their approach to a problem is critical to finding the words that will most effectively communicate my point of view to them.
I have had the same thought. I think I would decline to go and if i went politely decline to participate other than listening. I suspect that would suffice - Sadly there's so much interest space would probably be limited and so unlikely to be mandatory...
The ability to safely step back from DEI training depends very strongly on one's status within the organization. An older white male lawyer, probably highly-compensated, is going to be cut a lot more slack if he chooses not to participate than someone younger, and/or a woman (we don't get much room to dissent from anything at all before the hammer comes down), and/or someone on a lower echelon who is seen as more expendable.
So, those of you who are thinking about taking a personal stand on this: don't do it alone. See if you can create enough of a wave that others who don't have your status can draft off you, too. Build a posse. Use your status to protect others who agree with you, but have more to lose.
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!
I absolutely agree. Advocacy for more government intervention is the opposite of what I expected initially from this writer community. The last few years (or decades, really) we have seen, tragically, what happens when an institution with unrivaled power (the U.S. government) is corrupted from the inside out. Imbuing it with more immunity, influence, and bureaucracy does not seem to serve the right purposes.
You know what would help protect diversity of opinion? Decoupling livelihoods from employment.
If people worked for themselves more, instead of working for big corporations, that would address cancel culture's threat to employment by removing the fear of reprisal for sharing out-of-vogue opinions. The problem is that we now not only have leased our 8 hours a day of time to the company, but also represent them at all times outside of work. Hence we are expected to parrot whatever the CEO thinks customers want to hear. Ever since industrialization this has been the case, but because of social media, public scrutiny is extremely easy now.
This is perhaps a self-regulating mechanism. If literally nobody wants to work with you or pay you for your services, then you starve or change your behavior. That’s market forces working to express societal values. Ways by which this re-tooling of capitalism towards a more distributed economy are not as complicated as it might seem. With a mechanism such as a citizens' dividend (UBI) and a redistributive but not punitive funding mechanism such as a revenue tax (VAT), this can be achieved.
Those who are interested in learning more about this can look up distributism (a Catholic-origin governance philosophy advocating devolution of agency and authority from corporate and government institutions towards individuals and family units) and "The War On Normal People" by Andrew Yang.
I agree. I would favor clear contracts between employers and employees over at will employment, but as a voluntary business matter - not as a mater of public policy.
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.
Yes, yes, yes.
With regard to your final point I believe you are unfortunately wrong. History has shown that the balance of economic power between employers and employees almost always favors the employer so much that, absent government intervention, employers rarely face significant consequences for trampling on the rights of workers. If the invisible hand were enough to make employers treat their workers fairly we wouldn't have needed the labor movement.
The labor movement has also been a rich source of perverse externalities. Even so, given the track record of governments throughout history regarding compelled speech, compelled silence, compelled association, and compelled ostracism, I'd rather take my chances with the market.
So would you support repealing all the laws that currently prevent employers from terminating an employee on the basis of race, sex or any other currently protected characteristic? Or the laws that protect workers from sexual harassment by employers? Not a rhetorical question, meant seriously. I am sympathetic to concerns about unintended consequences and I definitely think that the US in particular has far too many burdensome and often redundant regulations but I believe you can be conscious of those concerns while still believing that such regulations serve a purpose just as you can attempt to reduce and reform police corruption and brutality without thinking that abolishing the police is a good idea. I would also point out that none of this would be compelled speech, compelled silence or compelled ostracism and it wouldn't fit my typical definition of compelled association either though I can see the case for that perspective. It would simply be another protection on worker's rights. As for the labor movement I find that it is much like the nation states that are coming in for so much criticism from the left nowadays. It has a long and complicated history and that history includes much that is racist, corrupt, stupid, and simply regrettable. But like with Canada or the United states themselves it is easy to overlook the positive impact it has on our lives simply because it now forms the backdrop of things that we take for granted. Do we like weekends? Do we like the concept of sick leave? Maternity leave? I don't know where you are writing from but from where I stand there are many social achievements of both labor unions and government regulation that appear to me to be clearly beneficial on net and next to impossible to accomplish through the incentives of pure market capitalism.
"So would you support repealing all the laws that currently prevent employers from terminating an employee on the basis of race, sex or any other currently protected characteristic? Or the laws that protect workers from sexual harassment by employers?"
I would, but I'm an anarchist, and I understand if people don't want to go all the way there with me. I agree that such laws have produced benefits. Your point that this scenario relates most closely to compelled association is well taken, though the other pieces are related. I would just encourage contemplation as to whether we can really know if such regulations are beneficial on net. Bastiat's admonition to consider the unseen applies here. There is much we don't see.
The labor movement was started 100 years ago. Different time, different place, different circumstances. With that said I had a conversation on this maybe 30 years ago and stated “ we don’t need unions anymore, people know their rights, government has a lot of policies in place to protect workers etc. the woman I was having the conversation with stated “I do and so do most women” and then I listened for an hour.
Legislation and rules are needed, and I should have made that clear in my post, but legislation can’t fix everything.
That's actually a really interesting point. Maybe this is just because I recently read Peter Turchin's works but I'm definitely not the first to point out certain similarities between our current period and the gilded age which produced the original labor movement. Turchin would say that this is because the current period and the gilded age each represented the nadir of a secular cycle. Whether or not you agree with Turchin it's possible to make an argument that the day for Unions has come and gone and come again.
I think the second concern could be better addressed by making it so that laws against political discrimination would apply only to behavior outside the work place. IMO your employer has a right to tell you what political opinions you can express when you're on their time, it's when employers or others start policing your own private political opinions that we get into a dangerous place. This would mean that work-place harassment could not be protected by a rule against 'political harassment' because it would occur at the workplace.
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
I also like the concept. I haven't heard it presented in this way. However, the largest issue with "cancel culture" isn't the "cancel" part, it is that the ideology that employs these tactics employ them as power moves. Honesty, dishonesty are all secondary to power. So I second that while I like the idea, I don't think addresses the core problem. "cancel culture" is the symptom of "power culture". I would bring up the (UK) case of Maya Forstater where she lost her objection despite ostensible protections.
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.
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.
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.
The model where the negative side wins if it defeats the affirmative side's plan or proposal has been a pretty standard feature of debate societies for decades. When I debated in high school, I understood it as a burden-of-proof issue similar to that in a legal trial.
I know there have been a lot of criticisms of the way that organized academic debate has moved away from persuasion and argument as they would ordinarily be understood in real life (including what might be called "gotcha" elements). And also the highest levels of college debate have started included a lot of arguments based on finding fault with opponents' mindsets, assumptions, cultures, language, etc., which does seem to mirror some political phenomena in the culture today. But I find it hard to accept the idea that the debate skill of identifying problems in someone else's proposal, without necessarily offering a counterproposal, is itself to blame for problems of discourse or polarization or whatever. The affirmative's burden of proof is just so traditional in debate.
Also, many correct criticisms of arguments don't entail a better alternative. For example, some problems might be unsolvable, or unsolvable at a particular point in time, or none of the participants in the conversation might have the knowledge or wisdom to identify a solution.
(I agree, though, that schools should probably also teach people to listen better and disagree better -- at least if we know what that consists of and how it can be taught!)
You are correct, I was in debate clubs in school. I just didn’t “see” it that way. What I saw and what I see daily are ideas being shot down and no real alternatives being offered, check out WHO on masks debate, CDC on masks, current senate and house on any idea. We have created this culture and it continues to grow. We’ve lost the ability to compromise which is more or less feeding the cancel culture we are probably supposed to be talking about :)
Wow, that middle school story is super disheartening. I wonder how common that is.
I'm no psychologist, but I wonder how much of these bad listening skills are taught & how much are just human nature. It takes some balls to field criticism graciously. And it takes real time & thought to criticize constructively.
In debate that I did growing up, the default for the negative was to defend the status quo. An alternative was to offer a critique and counter-plan. The best debate teams offered the critique and counter-plan , but it is challenging due to time constraints and unfavorably shifts the burden of proof. If those kids weren’t being taught that, it’s unfortunate. In 8th grade, they may have rules to prevent it to keep the format simpler, but I’m sure it still exists in many forms of debate in high school.
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.
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?
I think the main cancel pattern today is about people saying things *outside of work* that others (sometimes coworkers but more often non-coworkers) pressure their employers to fire them for. Limiting political conversations in the workplace, while it might have other kinds of benefits, probably won't protect against this dynamic.
Maybe the question of political expression at work could be subdivided like
* what kind of political expression should the law require employers to allow (or forbid) at work?
* what kind of political expression is it prudent for employers to allow (or forbid) at work?
While far from perfect, the US federal government has a system much like you suggest. Political activity in the workplace is basically forbidden, full stop. Employees' 1st amendment rights are well protected outside the workplace. Sanjour vs EPA is a case where employees were found to have the right to accept travel payments as facilitating payments for protected speech, even, or even especially, where that speech is critical of the employing agency. Pickering is the better known case, but Sanjour is really worth a read to see how this might work in practice.
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.)
Yes, what becomes of the employer who fails to give in to massive public pressure? From a PR perspective, this is a catastrophe.
Social media mobs rise with a fury and tend to disappear pretty quickly once they have run their course. At least we should help give employers an excuse to delay making their decision until the storm has passed.
I think the employer protections are actually the main benefit of legislation like this. And those protections would also benefit employees.
In many instances, it’s simply easier for an employer to terminate an employee at the will of the mob than it is to risk the PR disaster the comes from due process.