This post forms the second of a three-part set of reflections on the philosophic aspects of the controversy over the
anti-diversity manifesto of former Google employee James Damore and
his subsequent sacking.
Part 1 poured polite scorn on the suggestion that "The Left" has a particular "problem" with freedom of expression. In this part, I want to pin down what a
right to freedom of expression entails so I can suggest an answer to
the question: did Google infringe Damore's right to free speech by
firing him?
Before
starting, let me address the following point: was it not a bit odd
to discuss the concept of freedom of expression (ie. in the previous
part) before rigorously examining its scope (here)? There is in fact
some method to my madness. The earlier part will have highlighted the
importance to this sort of enquiry of stable use of terms, of constantly looking over one's
mental shoulder to check that one's moral views are consistent with
one another. We were reminded just how wide is the range of things that
people keenly want to express to each other (everything from
questioning how society should be run to bitching about one's boss)
and just how pervasive in ordinary life are the practical
restrictions on such expressions. Those observations provide some
important premises to keep in mind when seeking to understand the
nature of the right to freedom of expression. (Deliberately
engineering a long run-up to arrival at a definition of the concept
you are striking at is a venerable technique in philosophy; it
sometimes goes under the name of dialetics, sometimes
reflective equilibrium.)
(2) Did Google infringe James Damore's right to freedom of speech by firing him?
A right against whom?
When we
invoke the concept of freedom of expression, we are apparently
invoking a right of some sort, albeit not necessarily a
legally recognised one, ie a moral one. Who has this right?
Presumably all of us, at least potentially. But who is it a right
against? What is its scope?
Damore's
apologists are invariably quick to make the following point: free
speech means the right to say things that other people disagree with.
They go further and point out that freedom of speech would be pretty
meaningless were this not the case. They are correct on both counts,
for reasons discussed shortly.
Where
they go badly wrong is in telling us what they think the content
of the right is before telling us who the right bites against,
ie who is supposed to be under the corresponding duty. (Not one of
the editorials that I read criticising Google's decision to dismiss
Damore so much as acknowledged this issue.) The reason why skipping
that step is a big mistake in this context is that we generally find
that fundamental (or 'human') rights such as freedom of speech make
more sense to most people as rights against the state than
they do as rights as against the world at large.
Consider
freedom of association. This right clearly entails that the
government cannot stop us being friends with the people with whom we
would like to be friends. But our peers very much can stop us
being friends with the people with whom we would like to be friends
simply by refusing an offer of friendship, as every pre-school child
must learn (one can see this process of learning this social fact in
action in Channel 4's The Secret Life of 4-Year-Olds). The
same is true of freedom of expression. Everyone would agree this
right entails that the government cannot sanction people for
listening to the wrong sort of music. But if I kick a guy out of my
band for expressing admiration for Ed Sheeran, equally, I haven't
infringed his human rights.
That does
not rule out the possibility that private citizens might have duties
to help uphold a political environment in which free expression
flourishes. Private actors with an oversized influence over public
debate – broadcasters, universities, search-engine providers (yes,
hence Google, but qua search-engine provider, in that
capacity) – arguably might be under a positive duty to give a
platform to a wide range of views. (So far as universities are
concerned, this is a hotly contested issue at the moment; I'm not
going there in this post...!).
Further,
organisations with a great deal of practical power over people's
lives – such as employers – might be thought to be under duties
not to abuse that power in fairly specific ways, for example by not
discriminating against potential employees based on their political
beliefs or firing them for making political statements outside of the
workplace. And employees may have, or be thought to be entitled to,
whistle-blowing rights and/or rights to complain about their pay and
treatment. But just as the much-debated exceptions to the main
state-facing right of freedom speech (such as laws against
expressions of support of terrorists or racial hatred) are just that
– exceptions – so, conversely, these isolated rights of
expression that exist against private citizens are very much
exceptions to the rule that private people are generally not
considered to be morally or legally obliged to put up with words and
attitudes that they find disagreeable.
Crucially,
no-one – not any of Damore's supporters – has argued that
employees have a general right to freedom of expression on the
job, ie within the workplace itself. Some commentators have
specifically pointed out that legally speaking, under Californian and
US constitutional law, employees very definitely has no such right (I
would venture that the same is true under UK employment law). But
this is not just a matter of legal rights: my suggestion is that
no-one genuinely thinks that employers are under a moral duty
to let their workers say what they want in the workplace, certainly
not a duty to permit them to express whatever attitude they like on
matters that have a direct bearing on workplace interpersonal
relations or on the business's mode of operating. For reasons
discussed in the previous part, slapping the label “ideological”
on such views does not change the position: almost anything that goes
on in the workplace is a matter of ideology if (as Damore's
supporters do) you adopt a broad conception of ideology.
Rights,
reasons and values
This is
probably enough to dispose of the narrow question above. But I will
go on to discuss the point alluded to earlier, that the right to
freedom of speech means a right to say things that the person under
the corresponding duty considers to be wrong. This feature is worth
considering for a couple of reasons connected with Damore's case even
though we have established that he did not in the first place have a
right of freedom of expression as against his employer. Firstly,
thinking about this point highlights just how onerous a right to
freedom of speech actually is and so perhaps underscores how
implausible it is that it could be thought to operate as a right
against one fellow citizens. Secondly, the discussion will help draw
attention to an important aspect of a distinction that I make at the
end of this post between a right of freedom of expression and
a value in one's views being heard.
The
reason why a right to say only things with which others agree would
not make any sense is not something specific to the nature of freedom
of speech. It goes to the very nature of what is meant by a “right”
to do something in everyday moral discourse.
When we
say a person has a right to do X – whether a legal or moral right –
we mean something rather different to merely “there is a
consideration in favour of letting that person do X” / “there is
a reason to let that person do X”.
If, say,
I have a good reason to throw away a stack of papers (belonging to my
firm) at work (maybe the papers are copy documents that are no longer
needed) then I may be able to do so without criticism. But if it
should transpire that this reason didn't in fact apply (maybe the
documents were needed after all), or there were countervailing
reasons (one of my colleagues has just asked for copy urgently), then
I would be open to criticism. Since I don't have a right
to throw away paper at work everything turns on the weight of the
reasons for and against such an action. Suppose, instead, I own
the stack of papers. In that case, I can throw away the stack of
papers for whatever reason I like; everyone recognises that ownership
of something like paper entails the right to throw it away. One of
the things this entails is that others cannot decide that I was in
the wrong, ie. subject to criticism, for disposing of what is my
property. Others cannot second guess the balance of the
considerations that I was entitled to take into account (such as my
need or otherwise for the paper) in making this decision.
As the
philosopher Joseph Raz observes (Morality of Freedom, 1986), the function of rights is to place a
kind of mental barrier artificially separating our assessment of an
action in light of it being protected by a right, on the one hand,
and the actual underlying value of that action, on the other. Raz
essentially views the structure of rights in our thinking as being
like this:
A right of
S to X
=
{A reason
to let S (or possibly enable S to) X} + {A reason to exclude
from one's consideration one or more categories of reasons which
might otherwise tell against letting S or enabling to X}
On this
view, which I think is substantially correct, a right/duty is not
just a reason for doing or permitting something in the way that an
interest or value in favour of that action is. Nor is a
right necessarily a particularly important reason or one that touches
on fundamental human interests (think about rights to return damaged
goods, the rights granted by parking permits, and so on – rights
that have fairly trivial subject-matters). Instead, a right/duty
operates as what Raz calls as a peremptory reason: a
first-order reason for acting in a certain way combined (as above)
with a second-order reason for excluding certain other
considerations from one's assessment.
It is
this exclusionary aspect that distinguishes duties from ordinary
reasons to do something. Ordinary reasons for an action (eg: it's
sunny today) can be added together with other reasons favouring that
action (I haven't been for a walk already) and balanced against all
the reasons that exist against it (there's a new Game of Thrones
episode out); one then acts on the balance of reasons. But to the
extent you recognise a right you are unable to act on the balance of
the full panoply of all the first-order reasons that apply because
the right forces you to set aside whole categories of such reasons.
In the
context of freedom of speech, the categories of reasons that the
person subject to the duty must set aside include, in general, all
evaluations of the quality, sense,
long-term-consequences-if-taken-seriously – the content,
in short – of what the speaker/righter is saying. Hence the slogan
'free speech means the freedom to say things that other people
disagree with'. (Counter-intuitively, perhaps, on a Razian analysis,
commitment to freedom to say disagreeable things does not necessarily
entail that there is no good reason to ban people saying
disagreeable things – such analysis implies there might well be, at
one level – it is, rather, that one has to exclude such reasons
from factoring into one's ultimate decision.)
Raz is
not saying that rights/duties cannot be subject to exceptions. They
might be set up in such a way that they exclude acting on certain
considerations but not others. So it is with freedom of speech: we
accept that the government can act to censor the publication of a
report on the ground that it might place a child's safety at risk but
not on the ground that it might seriously embarrass the government.
Interestingly,
and somewhat paradoxically, the reasons that a right/duty forces you
to set aside typically include ones connected with the very values
that underpin the reason why there is a right in the first place.
Hence, even though a major, if not the major, consideration for
having a system of private property in the first place is that this
is assumed to lead, overall, to a more efficient use of resources, I
am not allowed to deny you the right to use your driveway on the
basis that you are not using it as efficiently as I belief I would be
able to use it. Similarly, even though a major, if not the major,
consideration in favour of freedom of speech is the value of free
exchange of ideas, something which, it is generally assumed, leads
overall to better ideas defeating worse ones, the state cannot,
consistent with recognition of the right, prevent people expressing
views merely on the basis that they are bad ones. This is indeed a
rather paradoxical way of thinking, but it is at the heart of how
rights figure in our reasoning.
(2A) Even
if Damore's rights were not infringed, how should the value of free
exchange of ideas have affected Google's decision-making?
In light of the above discussion, have we been too hasty in
exonerating Google? After all, freedom of speech is not just a right,
it is also (as implied above) an embodiment of certain important
values: in particular the value of living in a society where there is free
exchange of ideas. Or, less portentously: the value of hearing ideas
that are different from your own. Is Google guilty in its treatment
of James Damore of failing to do enough to promote this value?
I agree that this is an important value indeed. The sort of behaviour
that favours it goes well beyond behaviour that merely complies
with (the right of) freedom of expression in a strict sense.
But here is the crucial point. If we are now looking at free exchange
of ideas as a value rather than a right it necessarily
must figure in our reasoning in a very different way. This value is
not going to absolutely exclude other considerations such as the
quality of the ideas in question or their consequences. Instead, it
can and should be balanced against those considerations.
Thus Damore's supporters should be allowed to plead in the
alternative, but they need to accept the consequences of the
concession that they are thereby making. Namely, that if the right
of freedom of expression is no longer in play they cannot, to that
extent, rely on the slogan “freedom of expression means the freedom
to say things that others find disagreeable”. At the most they can
point to having an interest in saying things that others find
disagreeable and that those others have a defeasible reason to
hear those things.
What this means in the context of Damore's case is that Google had
good reason to listen to what this young engineer had to say, and a
reason perhaps to hesitate before sanctioning him even if they found
his views to be harmful. We can admit that they had a reason, in
other words, to afford a margin of toleration in favour of
letting different viewpoints get an airing within the workplace, in
favour of avoiding being (as Damore's rather self-serving phrase has
it) an “ideological echo-chamber”. But they were perfectly
entitled to weigh these reasons for toleration against various
reasons for taking action against Damore: the quality, tone, and
integrity of what he said, as well as its impact, were all matters
that they were entitled to take into account.
There is a balancing act here. It's similar to the balancing act that
all responsible citizens perform when they decide what views outside
of their own ideological viewpoint to give a hearing too. For none of
us have infinite time and resources. Rationally, we should spend this
on better rather than worse quality advocates of challenging views.
For my dose of right-wing politics I tune into, say, Daniel Hannan
but not Rod Liddle, Peter Hitchens not Katie Hopkins, Deidre
McCloskey not David Starkey – because I'd rather spend the amount
of attention that I give to ideas outside my ideological comfort zone
on serious, coherent, and honestly-held ones as opposed to frivolous,
incoherent and trolling ones. Your or my discrimination when it comes
to casual reading material is, as I say, no more than the result of
us lacking infinite time. Employers have additional and rather
higher-stakes reasons to be discriminating about the challenging
views that they tolerate in the interest of ideological diversity:
the need not to damage workplace relations, the need not to damage
their reputation, and so on.
Quality is everything, in short, if you are going to say something
offensive and you cannot point to a right to say it. And so it is to
the quality of James Damore's manifesto that I will turn in the final
part of this series...
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