Cricket Australia sacked one of its employees (apparently) for her public comments in favour of changing Tasmania’s abortion law. With the usual caveats about never believing what you read in the newspapers, that looks terrible. And the public response is always (quite reasonably) what should we do at the general level to prevent this specific thing from occurring. Based on the article, I think that Cricket Australia should not have sacked Angela Williamson and, certainly, the argument that she brought the organisation into disrepute is rather hard to sustain in the face of the public backlash.
So I want to move as quickly as I can to the general point about private regulation of speech. And I want to do that via a general comment about public commentators’ habit of looking only at one side of the equation. We perceive that somebody has suffered some wrong, we get outraged, and we wonder how we can protect everybody in that situation. But the lived experience has been that these protections get disproportionately used by the powerful to protect themselves from scrutiny or sanction. Classic example: the First Amendment has been a far better friend to Klansmen and Nazis than it has been to refugees and paupers.
The very common framing of freedom of speech is that it is a restriction on the government. I’ve argued before that this is a bad way to think about it:
If we intuit the freedom of expression as being only referable to the relationship between an individual and the State, then we run the risk of preventing people in vulnerable positions from being able to participate in speech acts. For example, an activist criticises the banks for immoral behaviour could find themselves either exposed to punitive fines or denial of service if they don’t have some kind of protection of their speech from a powerful private interest. Or employment contracts could be terminated on the basis of the employee’s religious views. Or a person could be subjected to a relentless campaign of abuse (‘rough music’) for expressing unpopular views. Unless our concept of freedom of speech extends to protecting people in these situations, freedom of speech is just a right for the wealthy and privileged.
The Cricket Australia case is a really good example of this private regulation of speech. Not only does the sacking regulate Williamson, it also regulates other employees of Cricket Australia.
There is a temptation to think this is bad. In the passage cited above, I argue (and strongly believe) that freedom of speech ought to be considered broadly to make it available to everybody and not just the wealthy and privileged. What I wanted to say there was that some speech act that was available to the wealthy should be equally available to the wage-dependent. If Rich Uncle Pennybags can stand on the street corner and declare ‘All snarks are boojums!’ then the lowliest street urchin should be able to do the same.
What I didn’t crack open was whether all speech acts should be protected in this way. The analysis above goes one way: if it’s good for Scrooge, it’s good for Cratchit.
Here’s where we can have fun. Imagine that Williamson had instead said something completely and utterly awful. In Canada, there’s a case of a teacher who was telling children antisemitic conspiracy theories, and we can imagine that some hypothetical variant of Williamson — let’s call him (it’s bound to be a ‘him’) ‘Xilliamson’ — says the most insanely offensive things in public. Do we think that Cricket Australia would be wrong to sack Xilliamson?
The answer, for me, is not straightforward. Where absolutists are coming out of the woodwork to say that ‘private’ (whatever that means) speech should not be a sackable offence, the historical inadequacy of regulating speech has meant that private (even ‘market-based’) mechanisms are necessarily needed to plug the gap. Mark Latham (former leader of the ALP) says something horrific about a minority group, I should be able to lobby to have him sacked. I should be able to say that I will boycott any advertiser whose adverts appear during Latham’s broadcasts.
For me, there’s a spectrum. Down one end, I have a person in a position of power that enjoys only a light touch from the legal system. Down the other, I have Williamson who is a person who depends on her job and should not have to trade political rights for a salary. Where does Xilliamson sit?
This is the balancing act that I think we should engage. We could start the discussion by asking what sort of speech we think is valuable for public participation. Perhaps we think that civil discussion about abortion rights should be protected but that antisemitic conspiracy theories should not. Perhaps religious belief should be protected, but not all expressions of it (such as homophobic speech likely to humiliate, ridicule, offend, or incite hatred).
We don’t need to (although many do) treat the question with a broad spectrum approach of protecting all speech. We can save the baby of socially beneficial speech from the bathwater of toxic speech (ask not why you’re washing your baby in toxic waste).
We can also discuss the reasonable expectations of employers: staff engaging in some kind of speech can bring the company into disrepute. The James Gunn example is an interesting one. Disney (a company for children’s entertainment) might have had a reasonable expectation that it shouldn’t be associated with a person who makes certain antisocial and offensive comments, but perhaps it doesn’t have a reasonable expectation to police somebody for comments they’ve recanted several years ago.
A blanket approach that all speech should be protected from your employer fails to engage with serious questions about how we use social pressure and shame to regulate speech before it becomes a more formal legal question. When we talk about wanting to protect speech, we should be specific about what kind of speech we want to protect without resorting to platitudes. When we talk about the form of the protection, we should be specific about the scale of that protection so that shock jocks and public officials can’t hide behind devices designed with minimum wage janitors in mind.