Speech And Consequences
Speech has consequences. It ought to.
In America, we have an elaborate set of laws strictly limiting the government's ability to inflict those consequences. That is right and fit; the First Amendment prevents the government from punishing us for most speech.
Private consequences are something else. Speech is designed to invoke private and social consequences, whether the speech is "venti mocha no whip, please," or "I love you," or "fuck off."1 The private and social consequences of your speech — whether they come from a barista, or your spouse, or people online, or people at whom you shout on the street — represent the free speech and freedom of association of others.
Yet people often confuse these categories. It's one of the fundamental errors of free speech analysis that I like to write about the most. I praise people who get it right — like a university administrator who points out that racist speech is not sanctionable, but will have social consequences — and ridicule people who get it wrong — like people who apply the term "bullying" to any criticism of their speech, or assert a right not to be criticized for being an asshole, or generally proclaim that criticism is tyranny.
Yet the idea persists.
Yesterday a guy named Pax Dickinson, the Chief Technology Officer of Business Insider, was the subject of social consequences. Examination of his twitter feed showed him to be a guy who expresses himself like this:
[Edited to add: Mr. Dickinson's position is that the tweet is three and a half years old, that it's obvious that it is an alteration of a Mel Gibson quote, and that I should have pointed out both. I leave that to the reader.]
Other than that, Pax Dickinson says some things that are genuinely funny, and offers political opinions that some would classify as libertarian. I mean, at least libertarian with respect to some citizens:
Pax's online antics caused ridicule and condemnation on Valleywag and Twitter, which in turn led to the introduction of a Twitter hashtag #StandWithPax2, to express the view that Pax Dickinson is a victim:
The foundation of "witch hunt" rhetoric is the notion that some free speech (say, Pax's) is acceptable, and other free speech (say, the speech of people criticizing and ridiculing Pax and his employer) is not. You can try to find a coherent or principled way to reconcile that, but you will fail. Pax Dickinson is not stupid. He tweeted provocative things, which have a natural and probable tendency to cause social consequences, seeking the social consequences he wanted: the admiration of the like-minded, the anger of people he could laugh at, and general attention. Yet, oddly, he and his supporters seem to think that some social consequences (approval, admiration, small-scale disagreement they can laugh at) are legitimate and other social consequences (large-scale/organized criticism and ridicule) are not.
It's clear that Pax Dickinson believes in social consequences himself. For instance, he believes in implicitly threatening violence when someone calls him an asshole, which is rather stretching the boundaries of social consequences:
For that matter, like many who identify as libertarian, he believes in consequences in general:
Yet, despite being someone who frequently ridicules those who complain about speech, he complains about speech he doesn't like and attempts to portray it as tyranny. This is familiar. He did so before this tempest:
And now, having reaped the social consequences of his words — just not the particular social consequences he wanted — he nails himself to a cross:
But speech has private social consequences, and it's ridiculous to expect otherwise. Whether sincere or motivated by poseur edginess, controversial words have social consequences. Those social consequences are inseparable from the free speech and free association rights of the people imposing them. It is flatly irrational to suggest that I should be able to act like a dick without being treated like a dick by my fellow citizens.
Some criticize social consequences as being chilling to free speech. That misappropriates the language of First Amendment scrutiny of government restrictions on speech and seeks to impose it upon private speech. It is true, superficially, that I am chilled from saying bigoted things because people will call me a bigot, or chilled from saying stupid things because people will call me stupid. But how is that definition of chill coherent or principled? How do you apply it? If Pax Dickinson suggests that "feminism in tech" is something to be scorned, to we treat that as something that as first-speaker speech that we ought not chill with criticism, or do we treat it as a second-speaker attempt to chill the speech of the "feminists in tech" with criticism? What rational scheme do you use to determine what speech is "legitimate disagreement," and what speech is abusive and "chilling"?
Some also criticize social consequences to people like Pax Dickinson as disproportionate. There's nothing inherently wrong with this argument. Proportionality or lack thereof is a legitimate subject of debate in the marketplace of ideas. If that marketplace of ideas determines that a social reaction to speech was disproportionate, it may inflict social consequences on the people who reacted. When a convention attendee reported a dongle joke, resulting in the firing of another attendee, the social consequence backlash was swift and intense. So, feel free to argue that a social consequence is disproportionate. I note, though, that it's not logical to hold response speech to a different standard than initial speech.
Finally, I should note that one social consequence is employment-related. In many American jurisdictions, employment is "at will" unless the parties have a contract that says otherwise; an employer can fire an employee for any reason not prohibited by law. Private employers can generally fire private employees based on their extra-curricular speech. That's private action, not government action; it's an exercise of such free association and free speech by private entities as the law allows. Employers may face social consequences — particularly in a social media age — for exercising that right in a way that angers the public, which is in turn the public's free speech right.
Employers may fire employees for speech because they feel the speech will reflect on them. On occasion, they may also worry that the speech can have very specific and negative legal consequences. Take this tweet from Pax Dickinson:
Pax Dickinson is apparently an officer within Business Insider, someone who supervises employees, and someone who interviews applicants to jobs at Business Insider. If anyone ever accused Business Insider and Pax Dickinson of sex discrimination in hiring or firing, or of workplace harassment or discrimination, that tweet would be useful evidence for the plaintiff, and might convince the jury of discriminatory intent on the part of a Business Insider officer whose actions are attributable to his employer. He has a First Amendment right to tweet that and cannot be prosecuted for it. Nor is the tweet, itself, a civil violation. But it's potentially powerful evidence of how Business Insider is run, and it's a freakishly reckless thing for an officer of a business to say in public.
You might argue that amounts to a state-imposed legal consequence on speech rather than a social one, but I submit you would be wrong. To explain why, consider a different fact pattern. Tomorrow a guy on the street punches me in the nose. He asserts he acted in self-defense, because I threw the first punch. But examination of his Twitter feed shows he recently tweeted "Fat bald mouthy white guys oughta be cold-cocked." Is using that tweet against the defendant an imposition on his free speech? No. It's using his own words as evidence of his intentions. When you talk, people will draw conclusions about your intentions based on your words. That's a social consequence.
As I read this at least one source is saying that Pax Dickinson has been "forced to resign." Note the ambiguity of that phrase. If people disagree with that outcome, they are free to attempt to inflict social consequences on Valleywag or Business Insider or on critics like me. I will say this: as a lawyer who sometimes advises businesses, I would have told Business Insider that (1) it's up to them what to do about Dickinson's tweets in terms of their own branding, but (2) some of Dickinson's tweets are going to cause them substantial problems if they ever get sued for discrimination or harassment by anybody under his authority.
Last 5 posts by Ken White
- Lawsplainer: So Are Those Christian Cake-Bakers In Oregon Unconstitutionally Gagged, Or Not? - July 8th, 2015
- Donald Trump's Lawyers Don't Know Or Don't Care What Defamation Is - July 1st, 2015
- No, Federal Grand Jurors Do Not Issue Federal Grand Jury Subpoenas - June 25th, 2015
- Is "No, I Didn't Do It" Defamatory? The Bill Cosby Defamation Case - June 24th, 2015
- DoJ's Gag Order On Reason Has Been Lifted -- But The Real Story Is More Outrageous Than We Thought - June 22nd, 2015