And yet more on freedom of speech

by Henry on October 30, 2007

The brouhaha over freedom of speech below reminds me that I never got around to blogging about Bruce Barry’s very interesting book Speechless:The Erosion of Free Expression in the American Workplace (Powells, Amazon) which I read over the summer. I was sent it as a freebie because it has a chapter about blogging in the workplace, but found that I was grabbed by the general discussion of how few rights Americans have at the workplace. This is something that I had known in a general sort of way but hadn’t experienced personally (academics, at least tenure-track academics in good institutions, typically have it a lot better than most), and that was really brought home by Barry’s extended arguments and plethora of real-life illustrations. The book starts by discussing the experience of Lynne Gobbel, an Alabama factory worker.

Gobbel had a John Kerry bumper sticker. Her boss informed her that the owner of the factory, Phil Geddes, had demanded that she remove the sticker or be fired; he also told her “you could either work for him or John Kerry.” Geddes had on a previous occasion inserted a flyer in employee paycheck envelopes pointing out the positive effects that Bush’s policies as president were having on them. “It upset me and made me mad,” said Gobbel, “that he could put a letter in my check expressing his political opinion, but I can’t put something on my car expressing mine.”

Barry emphasizes that this is an unusually blatant example of control of political speech in the workplace (he also makes a damn good case that more subtle forms of control are rife, and that they go in various political directions). But precisely because it is such a stark case, it serves nicely to illustrate the issues at hand. Most libertarians, I suspect, will see this as unfortunate, but as nothing to get too upset about – after all, no-one forced Lynne Gobbel to work for Phil Geddes, and their contractual arrangement could be terminated at any time. Left-liberals and social democrats are likely to see it differently. They’re likely to think that there’s something pretty off about a situation where Phil Geddes can effectively tell his employees how they should vote in leaflets included in their paycheck, while his employees are fired if they engage in much less obtrusive forms of political speech.

More generally, from the latter point of view, countries or US states where people can lose their jobs for expressing certain political opinions are likely, as a result, to be places where people’s effective ability to exercise free speech rights in certain important situations are going to be stunted and diminished. The abstract right to express your support for a political candidate or position isn’t very useful if you think that you’re going to lose your job if you try to exercise it. What’s important here, and to be nourished is exactly the right to effective free speech (which in this example could be protected by proper legislation allowing people only to fire employees for-cause). This is also why I found Andrew Sullivan’s criticism of Chris’s original post so peculiar. If you’re a self-proclaimed Burkean conservative, you are, I would have thought, telling the world that you are much less interested in abstract rights than in the concrete ways that we can and should live together. A vehement hostility to the very notion of ‘effective’ liberty is, to say the least, a decidedly odd position for a Burkean who claims to value free speech to be taking.

{ 1 trackback }

Delaware Free Speech Issues? « Wintry Smile
11.02.07 at 4:04 am

{ 55 comments }

1

SamChevre 10.30.07 at 7:22 pm

Random interesting fact: here in VA, it’s been mostly conservatives arguing for limits on how much employers can enforce rules about permissible stickers on cars. (I think current law is they can restrict stickers, but not state-issued license plates.)

2

Sk 10.30.07 at 7:48 pm

Yeah, good old academia…

University of Delaware Requires Students to Undergo Ideological Reeducation
October 30, 2007

FIRE Press Release

NEWARK, Del., October 30, 2007—The University of Delaware subjects students in its residence halls to a shocking program of ideological reeducation that is referred to in the university’s own materials as a “treatment” for students’ incorrect attitudes and beliefs. The Orwellian program requires the approximately 7,000 students in Delaware’s residence halls to adopt highly specific university-approved views on issues ranging from politics to race, sexuality, sociology, moral philosophy, and environmentalism. The Foundation for Individual Rights in Education (FIRE) is calling for the total dismantling of the program, which is a flagrant violation of students’ rights to freedom of conscience and freedom from compelled speech.

“The University of Delaware’s residence life education program is a grave intrusion into students’ private beliefs,” FIRE President Greg Lukianoff said. “The university has decided that it is not enough to expose its students to the values it considers important; instead, it must coerce its students into accepting those values as their own. At a public university like Delaware, this is both unconscionable and unconstitutional.”

The university’s views are forced on students through a comprehensive manipulation of the residence hall environment, from mandatory training sessions to “sustainability” door decorations. Students living in the university’s eight housing complexes are required to attend training sessions, floor meetings, and one-on-one meetings with their Resident Assistants (RAs). The RAs who facilitate these meetings have received their own intensive training from the university, including a “diversity facilitation training” session at which RAs were taught, among other things, that “[a] racist is one who is both privileged and socialized on the basis of race by a white supremacist (racist) system. The term applies to all white people (i.e., people of European descent) living in the United States, regardless of class, gender, religion, culture or sexuality.”

The university suggests that at one-on-one sessions with students, RAs should ask intrusive personal questions such as “When did you discover your sexual identity?” Students who express discomfort with this type of questioning often meet with disapproval from their RAs, who write reports on these one-on-one sessions and deliver these reports to their superiors. One student identified in a write-up as an RA’s “worst” one-on-one session was a young woman who stated that she was tired of having “diversity shoved down her throat.”

According to the program’s materials, the goal of the residence life education program is for students in the university’s residence halls to achieve certain “competencies” that the university has decreed its students must develop in order to achieve the overall educational goal of “citizenship.” These competencies include: “Students will recognize that systemic oppression exists in our society,” “Students will recognize the benefits of dismantling systems of oppression,” and “Students will be able to utilize their knowledge of sustainability to change their daily habits and consumer mentality.”

At various points in the program, students are also pressured or even required to take actions that outwardly indicate their agreement with the university’s ideology, regardless of their personal beliefs. Such actions include displaying specific door decorations, committing to reduce their ecological footprint by at least 20%, taking action by advocating for an “oppressed” social group, and taking action by advocating for a “sustainable world.”

In the Office of Residence Life’s internal materials, these programs are described using the harrowing language of ideological reeducation. In documents relating to the assessment of student learning, for example, the residence hall lesson plans are referred to as “treatments.”

In a letter sent yesterday to University of Delaware President Patrick Harker, FIRE pointed out the stark contradiction between the residence life education program and the values of a free society. FIRE’s letter to President Harker also underscored the University of Delaware’s legal obligation to abide by the First Amendment. FIRE reminded Harker of the Supreme Court’s decision in West Virginia State Board of Education v. Barnette (1943), a case decided during World War II that remains the law of the land. Justice Robert H. Jackson, writing for the Court, declared, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

“The fact that the university views its students as patients in need of treatment for some sort of moral sickness betrays a total lack of respect not only for students’ basic rights, but for students themselves,” Lukianoff said. “The University of Delaware has both a legal and a moral obligation to immediately dismantle this program, and FIRE will not rest until it has.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, due process rights, freedom of expression, and rights of conscience on our campuses. FIRE would like to thank the Delaware Association of Scholars (DAS) for its invaluable assistance in this case. FIRE’s efforts to preserve liberty at the University of Delaware and elsewhere can be seen by visiting http://www.thefire.org.

3

Brett Bellmore 10.30.07 at 7:56 pm

I suppose self-proclaimed Burkean conservatives, (I’m not one, btw.) might observe that appeals to “effective” liberty essentially always involve empowering government to violate liberty, more conventionally defined, in the hope that government will oppress the oppressors, rather than just… oppress.

Perhaps Burkean conservatives harbor some doubts about how realistic this hope is?

4

SamChevre 10.30.07 at 8:02 pm

Brett,

Am I one of the ones you are questioning?

I don’t like government intervention. However, I don’t see that, in the current world, there’s any real substitute in some cases. The government has its thumb on the scales already; if you’re going to punish employers for “hostile environment harassment”, saying that they can’t punish employees for having particular bumper stickers might be necessary.

5

bi 10.30.07 at 8:13 pm

Sk might be interested to know that FIRE is funded by the Sarah Mellon Scaife Foundation.

Brett Bellmore, the so-called “conventional” definition of liberty is only in your head.

6

Sk 10.30.07 at 8:18 pm

Nope, utterly uninterested in who funds FIRE (or who Sarah Mellon is).
I was quite interested in the freedom of speech (and conscience) issues brought up at the University of Delaware, though. Admittedly, this doesn’t impact where people work: it impacts where they live. A minor quibble, though.

Sk

7

Brett Bellmore 10.30.07 at 8:21 pm

Technically, Bi, it’s in an awful lot of heads, or else nobody would have to refer to effective liberty, to distinguish what they were talking about from liberty as it is, yes, conventionally defined.

8

Sebastian Holsclaw 10.30.07 at 8:22 pm

I’d be much more open to the idea that free speech interests ought to make it more difficult to fire people for most forms of speech (though probably you can’t take it as far as free speech in other contexts because of customer interactions or image issues with spokespeople) than I am to the idea that the government ought to restrict hate speech or try to control who owns media outlets.

I would formulate the free speech *right* as being held against governments, but that a free speech *interest* is found with employer/employee relationships. I would make the distinction to allow for customer interaction interests and the like to be considered (you shouldn’t for example be forced to hire a bellman who is going to urge customers to vote for Bush while on the job).

9

bi 10.30.07 at 8:29 pm

“utterly uninterested in who funds FIRE (or who Sarah Mellon is)”

Of course, you’re utterly uninterested in checking whether your source is reliable? This systemic Orwellian oppression sounds really bad… but only if it actually exists.

“effective liberty, to distinguish what they were talking about from liberty as it is, yes, conventionally defined”

No, it’s to qualify a term which has been hackneyed beyond recognition. Nothing suggests that the schmibertarian notion of “liberty” is in any way commonly accepted or historically accepted.

10

notsneaky 10.30.07 at 8:44 pm

I think the story of the Alabama worker is like the story of University Delaware. Maybe it happened, maybe it happens, maybe there’s something to it but who knows if its in any way representative or common. But of course it’s easy to use it as cudgel to bash your political opponents with, so the “maybe”s get quickly forgotten.

Why do you think that Americans have a lot fewer “rights” in the workplace than others? I mean, aside from the “job protection” reasons which aren’t directly or necessarily related to expressing one’s opinion or having a bumper sticker.

11

Brett Bellmore 10.30.07 at 8:49 pm

Then why the adjective? People using the term “effective” liberty know darned well they’re talking about something different than unmodified liberty, and to a large extent opposed to it.

The theory is, so far as I can tell, that if we arm the government with powers of oppression, it will, conveniently, chose to oppress only the people the advocate thinks ought to be oppressed, and no others. Which, according to utilitarian calculations, results in a net increase in this effective liberty.

Which, first, reminds us that utilitarianism really does not handle well the concept of “rights”. No surprise there, “rights” are a part of deontological theories, and utilitarianism is not a deontological theory.

And second, demonstrates that advocates of this concept have a dangerously delusional view of the nature of government.

12

tom bach 10.30.07 at 9:37 pm

From the Univeristy of Delaware: the fiends clearly mean to teach undergraduates to deal with everyday problems in a civil manner; thank gods for Fire and etc.

Behind Closed Doors Scenarios
SCENE 1: General Noise

It is Wednesday at 11:15pm. RAs won’t be doing rounds again for another hour or so and the floor RA is at an event. The person two doors down from you has her/his stereo on and is sitting in the doorway on her/his cell phone having a loud conversation while bouncing a tennis ball against the hallway wall. You have an 8:00am Thursday class and have yet to prepare for the quiz.

SCENE 2: Hallway Vandalism

For the third time in a month, someone has put her/his trash down by the bathroom. The floor has incurred a $25.00 and $50.00 fine and this incident will lead to a $75.00 fine. You have seen who is doing this.

SCENE 3: Guest

The person living three doors down the hall has had a friend visit 4 times since the start of the year. This person is not a student and seems to have nothing better to do than to hang out here. He constantly walks around the floor dropping in on your (and several others’) room. He makes himself fully at home, taking stuff from your refrigerator, sitting on your bed, borrowing your music, etc. He does not seem capable of taking a hint that he is not welcome in your room. In general, he makes you fairly uncomfortable. You are walking down the hallway and you overhear a floor member on the phone inviting this guest to stay for 10 days.

http://www.udel.edu/reslife/about/samplelessonplan.htm

13

tom bach 10.30.07 at 9:44 pm

Oh noes, there is pinko commie communitarian brainwashing:

Students will gain a sense of mutual obligation as well as give and take.
Students will understand how an individual community member can and should contribute to a group.
Students will establish a common language to discuss community and a sense of personal definition about the concept of community.
Students will be introduced to the concept that shaping the community atmosphere is within the power of the individuals on the floor, not the sole responsible of the Residence Life staff.
Students will be introduced to effective strategies for peer to peer assertiveness.

http://www.udel.edu/reslife/about/samplelessonplan.htm

14

notsneaky 10.30.07 at 9:51 pm

I think this:
http://www.udel.edu/reslife/about/competencies.htm

is more along the lines of what FIRE is whining about. It’s not as bad as they make it out to be, but it does seem obnoxious in an irrelevant smug hippy kind of way.
In other words, there’s nothing wrong with the sentiments per se but you just know the implementation is goofy.

15

tom bach 10.30.07 at 10:10 pm

Notsneaky
Well “just knowing” about “goofy” behaviour and goofiness being the fact of the matter are two rather different kettles of fish.

From the link:
Understand the power of an individual in a community.

A. Know how to critically examine your individual contributions to groups to which you claim membership.

B. Learn how to contribute to the creation and actualization of community expectations.

Narrative:

Higher education has the responsibility to create an educated and informed citizenry. This is essential to support a democratic society. A strong citizen is one who recognizes their ability to influence change for the betterment of the society: they are participants in their community; they challenge opposing views; they form productive partnerships; and they encourage the participation and engagement of each member of the community. Students will learn about both the power and the responsibility they have within a community by critiquing and reflecting upon their contributions and by participating in those activities that contribute to the development of a strong community. They will attend and participate in floor meetings, exercise their right to vote, understand the impact of consumer choices, and have an awareness of how their contributions affect their community.

16

Thomas 10.30.07 at 10:11 pm

What it means to be a Burkean conservative in a (more or less) liberal society of long-standing isn’t entirely clear to me. The skepticism Andrew has toward limits on speech seems broadly consistent with a Burkean conservatism in present circumstances.

On the Gobbell story, a couple of thoughts: First, I think the reaction to Geddes’s firing of Gobbell was universally negative. The “rest of the story” is that the reaction was so strong that Geddes reversed his decision, and offered her her job back. There are limits on this sort of misbehavior, even if they are not legal limits. Second, I’d note that the proposed legal response (for-cause terminations only) is overbroad (one could simply limit the at-will arrangement further by saying that political speech isn’t a permissible reason for termination), and subject to serious complications. One serious problem is the interaction of this protection and the concept of effective liberty: what is one to do with the speech of say, neo-Nazis? We’ve run the subsidy right up to the ban, meaning that a comprehensive sort of speech code is required. Surely at this point a Burkean conservative, whatever he looks like, is entitled to hop off the bus.

17

notsneaky 10.30.07 at 10:19 pm

“Concurrently, the student must explore the perceptions/biases/ stereotypes that they hold about social identities to which they belong and also about those to which they do not claim membership. It is essential that they trace the source of these perceptions/biases/ stereotypes.”

This is a worthy goal. Again, it’s in how it’s implemented.

Now for the hippy crap:

“A. Each student will be able to define sustainability.

B. Each student will be able to explain how sustainability relates to their lives and their values, and how their actions impact issues of sustainability. “

“In the first year of college, students will learn and be able to define sustainability including the triple bottom line of having a society which is socially just, and communities which are economically and environmentally responsible.”

“By having reflected on these areas and beginning to connect their role, students will be well equipped to begin with taking action on the creation of a sustainable society”

“Students who achieve this competency would go well beyond recycling and would be able to fully examine the impact of purchasing decisions, eating choices, and transportation selections.”

Of course “sustainability” “environment” and all that stuff is great but you know that’s not what they’re talking about. They want you to be a vegan, tofu munching, Starbucks boycotting, cause-of-the-week “activist”.

The obnoxious part is that this is pushed in such an over the top way.

And from above:
“they challenge opposing views”

“Know how to critically examine your individual contributions to groups to which you claim membership.”

I don’t claim membership in any groups and any contributions to some groups I make are a result of me being a nice guy not some obligation that some hippy imagined.

18

Maurice Meilleur 10.30.07 at 10:41 pm

Stories like the ones the FIRE press release describes are almost always the product of (a) hyperventilating kids with chips on their shoulders freaking out about the policies created by (b) lawsuit-paranoid upper administrators who appoint (c ) ad hoc, poorly-guided and disorganized committees to design policies implemented by (d) overearnest, too-goofy, and often self-important lower administrators (and their student employees).

The policies themselves are either a direct and smothering response to some incident that PR-minded administrators are concerned to prevent happening again (by whatever means are flexible and comprehensive enough to keep people in line), or alternately are in place because no one on the committees creating them could come up with a good argument to oppose the ends they proclaim (‘What do you have against sustainability, Fred?’).

In other words, they are (virtually) never the result of a leftist conspiracy. University administrations are the dumping grounds for risk-averse managerial busybody rule-followers, not latter-day Guevaras and Dworkins.

19

Chris Bertram 10.30.07 at 10:45 pm

_People using the term “effective” liberty know darned well they’re talking about something different than unmodified liberty, and to a large extent opposed to it._

Hard to know where to start with this piece of rhetoric, except that I think I can guess what BB means by “unmodified liberty”, it is liberty modified by the modifier “negative”. If only the modifications stopped there! Were we to inquire a little into what counts as interference, we’d find (I’m willing to bet) that Brett, blind to his own modifications, wouldn’t count other people’s property as a significant restriction on the liberty of the propertyless. So it goes.

20

notsneaky 10.30.07 at 10:53 pm

mm
That pretty much nails it.

21

Brett Bellmore 10.30.07 at 11:17 pm

I think it is certainly possible for the property of others to impact one’s rights. The classic example of having all the property around your present location bought, and fenced in, imprisoning you. As a practical matter, we don’t find ourselves in a situation where that’s the case, but it’s indisputably possible.

22

Mrs Tilton 10.31.07 at 12:32 am

I think it is certainly possible for the property of others to impact one’s rights. The classic example of having all the property around your present location bought, and fenced in, imprisoning you.

Well done, Brett. Now: learn to apply the concept of metaphor.

BTW, the non-metaphorical example you cite presents, I think, a pretty trivial problem. I’m fairly certain there’d be an easement by operation of law. I don’t think the CTers are asking for anything more than that.

23

Bloix 10.31.07 at 12:57 am

“It upset me and made me mad,” said Gobbel, “that he could put a letter in my check expressing his political opinion, but I can’t put something on my car expressing mine.”

What is the problem here? Gobbel was free to stop providing his services to his employer if he didn’t like the letters in his check. And his employer is equally free to dispense with his services if he doesn’t like what’s on his car.

Or, as Anatole France put it, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” Anything wrong with that?

The problem here has nothing at all to do with free speech. It has to do with inequality. Money is power and when wealth is very unequally distributed the rich are very powerful. Proposals for laws that are intended to constrain the effect of money on speech miss the point.

24

Brett Bellmore 10.31.07 at 1:19 am

But you can’t eliminate inequalities of power; The very inequality you lament can only be abolished by increasing the even more profound inequality of power between government and the governed.

25

Bloix 10.31.07 at 2:02 am

I disagree. Between the Great Depression and the 1990’s income inequality dropped dramatically, in large part because of the increased strength of unions. I think that the government can do a great deal to promote equality in ways that do not require increased power to government. To the contrary, I think inequality typically requires the use of more government power against poor people in order to maintain social order, whereas if the goverment promotes income equality people are more capable of maintaining order on their own.

26

SG 10.31.07 at 2:15 am

But you can’t eliminate inequalities of power

Here Brett dismisses pretty much every development in society since (before?) the magna carta. He then goes on to suggest

The very inequality you lament can only be abolished by increasing the even more profound inequality of power between government and the governed.

which is not even true. For example Unions could strong arm government and employers to reverse the power of the employer to restrict the employees free speech, without ever having to increase the strength of government – they could even weaken it, by setting up in the process their own newspapers and radio stations to represent their members, their own paramilitaries to fight the police and strikebreakers, etc. I believe there are historical precedents for this…

Perhaps in this lies the answer to notsneaky’s question, as to why Americans will tolerate these kinds of restrictions while other countries won’t – because those other countries are social democracies, their governments and societies heavily influenced by unions.

27

Brett Bellmore 10.31.07 at 2:18 am

That would be a great argument if, as a matter of historical fact, between the Great Depression and the 1990’s we hadn’t seen a vast expansion of federal power relative to the individual. The very inequality I was pointing to.

28

Noumenon 10.31.07 at 2:26 am

At my factory my boss put up messages on the bulletin boards in 2004 telling us how good he thought Bush would be for our economy. There’s also a big screen TV in the break room with plant news… and also arguments against building the new ethanol plant in town. Meanwhile, a guy who got up in the employee meeting and criticised them for cutting our health insurance was fired the next day.

Seems like the only job where the employees can make political speech that the employer is uncomfortable with is the government.

29

notsneaky 10.31.07 at 2:28 am

I wasn’t asking why Americans tolerate these kind of restrictions but rather why Henry believed that this was so? I guess I was asking for evidence. Or something more than just anecdotes.

30

SG 10.31.07 at 2:35 am

Brett, in Australia at least in the 30s to the 60s, strikers were shot by the army, which was on occasion dragged out to confront them. You may recall similar events in the 60s in the US, in connection with Vietnam. I don’t think that happens as much anymore, and (aside from a few changes made by your mates on the right to support the GWOT), I don’t know that it can be said that federal power has increased relative to the Great Depression. You probably ought to defend that claim a little.

31

Brett Bellmore 10.31.07 at 2:56 am

Oh, I recall a few episodes like that, as recent as the ’90’s. Churches being burned down with people in them, things like that. You may even have heard of one or two of them.

Even now we’ve got an epidemic of “no-knock” raids, where the police break into private residences in the dead of the night, in force, and respond to any resistance with deadly force. You might say they don’t have to send in the army, because the police have become the army.

But I think you’re confusing the overall level of government power with acute exercises of it. In many ways, the private realm has been severely contracted since the beginning of the last century. And that effects enormously more people than the occasional paramilitary excess.

32

m 10.31.07 at 2:59 am

Only one question: Why should a the privileges of a corporate charter be given to a business behaving in ways so antithetical to the Bill of Rights and the truths we hold self-evident?

33

Helen 10.31.07 at 3:03 am

It ain’t what they said, it’s the way that they said it

34

SG 10.31.07 at 3:32 am

And has the “overall level of government power” changed for the worse? Are you talking here, for example, about the state having the right to set the minimum wage? Or to decide who can be a teacher and who can’t? Do you mean the decision of the state to set certain minimum standards on who can and cannot be a doctor?

A lot of this “increased power” really just represents the state stepping in to try and regulate the private conflicts that used to occur between for example, unions and businesses, teachers and students, or doctors and patients. To represent this “increased power” as a bad thing you have to imagine that before the state “siezed” this power those conflicts were solved better, more fairly or more efficiently. They weren’t.

In this as in all other debates Brett, you have mythologized the state as a monster that preys on society. Like most glibertarians you are happy to talk about the importance of freely associating individuals freely choosing certain decisions, but you emphatically refuse to accept that in most aspects of its ordinary “increased power”, the state is merely an efficient representation of that.

35

yoyo 10.31.07 at 7:20 am

Christ, brett has to be the most intentionally uncomprehending person i’ve ever run across. The ‘power of the state’ hasn’t increased wrt ‘no knock searches’ if you actually look at the context. War on Drugs is hardly anything that Prohibition wasn’t, except replace demon rum with mari juana. But since tax rates have gone up on rich people, OMG!!

36

bad Jim 10.31.07 at 7:21 am

Hi. My name is Jim. I’m a Californian and I used to be a business owner. My understanding is that anyone could be fired for any reason or for no reason, apart from an assortment of protected classes. I’m not at all sure that an affronting bumper sticker would be an issue, political preference not being privileged.

My partners and I were slightly to the left of at least our white collar employees, a trick perhaps not easily accomplished outside Southern California, with the result that my erstwhile colleagues, even those we fired for cause, greet me by name and embrace and show off their latest offspring.

37

Evan 10.31.07 at 9:21 am

I am really glad I don’t live in the USA, but in a country (allegedly 3rd world) where we have intelligent labour laws. In this country I can be fired for drunkenness, absenteeism, insubordination, criminal activity and incompetence, but if you try to take any action whatsoever against me in respect of my political opinion, religious views, or anything else, you will end up in labour court getting your ass sued off. In other words, you can fire me for circumstances that render me incapable of or poor at performing my duties, period. You can’t fire me because you don’t agree with my politics. That’s just madness.

38

Andromeda 10.31.07 at 10:20 am

Mrs. Tilton@22: There’s actually someone in Massachusetts who’s had her driveway (which was on an old railroad easement) covered with a new commuter rail; who had sold her property on another side; and who, having tried to build a driveway out the remaining side, discovered doing so would be in violation of zoning rules (and that, moreover, as her property is in one town but the driveway would connect to a road in another, she needs to deal with not merely two towns but two separate counties). The commuter rail folks, having made a token, failed attempt at helping her, have walked away.

The non-metaphorical example turns out to be not so hypothetical.

39

Brett Bellmore 10.31.07 at 10:58 am

“discovered doing so would be in violation of zoning rules “

Does it really need to be pointed out that zoning rules are not an example of private property? Heck, if the rail easement situation was anything like we’ve seen hereabouts, in the rails to trails fight, that wasn’t either.

“War on Drugs is hardly anything that Prohibition wasn’t”

Actually, it’s a lot of things Prohibition wasn’t, starting with, thanks to the absence of a relevant constitutional amendment, unconstitutional.

40

bi 10.31.07 at 11:55 am

So the zoning rules get 100% of the blame, and the commuter rails 0%.

Big Money 1, Government 0!

41

rea 10.31.07 at 11:56 am

I don’t claim membership in any groups

So, even if you lived in a dorm with a hundred or so other students, you would feel free to leave your trash in the hall, and invite obnoxious nonstudent guests to stay with you for 10 days.

I sse. You’re an island . . .

42

Barry 10.31.07 at 12:49 pm

“Christ, brett has to be the most intentionally uncomprehending person i’ve ever run across. The ‘power of the state’ hasn’t increased wrt ‘no knock searches’ if you actually look at the context. War on Drugs is hardly anything that Prohibition wasn’t, except replace demon rum with mari juana. But since tax rates have gone up on rich people, OMG!!”

Posted by yoyo

yoyo, Brett has a long, long history here. ‘Uncomprehending’ is not the correct term. The correct term is ‘evil and highly dishonest’.

43

Slocum 10.31.07 at 12:57 pm

Most libertarians, I suspect, will see this as unfortunate, but as nothing to get too upset about – after all, no-one forced Lynne Gobbel to work for Phil Geddes, and their contractual arrangement could be terminated at any time.

Well, yes, and no. Yes, that’s the typical libertarian position, but no, that’s not a good summary of the rationale. Seems like a good idea to trot out a reference to What Is Seen and What Is Not Seen’.

When you make it legally difficult for employers to dismiss employees (and create a variety of legal grounds for employees to bring suit for wrongful dismissal), you protect existing jobs — that’s what’s seen. But you make employers much more reluctant to make the commitment to hire full-time employees in the first place — that is what is unseen (though even the Europeans are starting to notice).

Whether being fired by a jerk like Geddes is a big deal or not depends very much on the job market and the safety net. If the job market is healthy, unemployment is low, and the safety net is adequate, then employees themselves are better off with flexibility and ‘at will’ employment. This is, of course, the idea behind the Danish ‘Flexicurity’ model.

44

John Emerson 10.31.07 at 12:58 pm

But you can’t eliminate inequalities of power; The very inequality you lament can only be abolished by increasing the even more profound inequality of power between government and the governed.

This makes the disagreement clear, not that it wasn’t already. Libertarians are unconcerned about inequalities deriving from differences in wealth (and power), and are militant about any but the most minimal exercise of government power. Probably 300 years ago this was a reasonable stance, but in the world of today (transformed by three centuries of liberalization and strengthening of property rights) most find it unreasonable. That’s why libertarians are lucky to get 1% of the vote, except as protest candidates or in mentally ill places like Texas.

45

John Emerson 10.31.07 at 1:04 pm

44. Of course, this is all truism. Brett is an interesting museum specimen very useful for teaching purposes. Take out the buzz ords “even more profound” and his statement is not completely silly.

46

rea 10.31.07 at 1:42 pm

we’ve got an epidemic of “no-knock” raids

The notion that we have more “no-knock” raids now than back in the 30’s, a couple of decades before Mapp v Ohio was decided, is risable.

47

Henry 10.31.07 at 1:42 pm

notsneaky – in belated response to your query, there is some good reason to believe that this is a more general problem. The Barry book points to figures suggesting that more than half the US work force works under “at will” conditions with no substantive exceptions, meaning they can be fired for more or less any reason or no reason at any time. As to why the US is different from pretty well every other advanced industrialized democracy on this, I don’t know. These differences have historical roots going back to the nineteenth century and at least further – I have a book on my ‘to be read after my tenure file is submitted and I need to distract my mind’ shelf suggesting that the US uniquely imported mediaeval notions of social relations into its labor law, but can’t say much more, obviously, until after I have read it.

Slocum – you’re quite right that the threat of getting fired is greater or lesser depending on the job market, safety net etc, although this can be exaggerated – someone who can’t get a reference from their previous employer, and seems like a ‘troublemaker’ is likely to have a tougher time getting a new job, for obvious reasons. Even so, I’d happily advocate for at-will employment plus a proper safety net if I thought it was a feasible political option in the US (unfortunately I don’t). Your what is seen, what is not seen applies to the issue of free speech here too. It’s going to be difficult to demonstrate the stifling of free speech b/c except in rare cases, people who are intimidated from engaging in it by their employers will not be ‘seen’ – to use more formal language, certain kinds of political speech will be off the equilibrium path of play. I’m not seeing that the seen/not seen argument is a specifically libertarian one, by the way – it doesn’t seem to me to stem from libertarian ideas so much as insider/outsider theories of employment markets (which I think do have some purchase in countries like Italy, but are considerably exaggerated in others).

I’d ask people to refrain, insofar as they can, from the temptation of arguing with brett bellmore. There are much more intelligent and interesting statements of the conservative and libertarian cases to be argued with if that’s what you’re looking for.

48

CW 10.31.07 at 1:53 pm

“Mrs. Tilton@22: There’s actually someone in Massachusetts who’s had her driveway (which was on an old railroad easement) covered with a new commuter rail; who had sold her property on another side; and who, having tried to build a driveway out the remaining side, discovered doing so would be in violation of zoning rules (and that, moreover, as her property is in one town but the driveway would connect to a road in another, she needs to deal with not merely two towns but two separate counties). The commuter rail folks, having made a token, failed attempt at helping her, have walked away.

The non-metaphorical example turns out to be not so hypothetical.”

The remedy is easement by necessity. Or special exception. Or both.

49

Seth Edenbaum 10.31.07 at 2:02 pm

I suppose I should have posted this in the last link before Chris Bertram started deleting everything I write:

The ACLU on Workplace issues

And here’s an interesting one

50

Slocum 10.31.07 at 2:41 pm

Henry: someone who can’t get a reference from their previous employer, and seems like a ‘troublemaker’ is likely to have a tougher time getting a new job

Possibly, although references are becoming increasingly useless here. For fear of liability, HR departments are less and less willing to provide anything other than, yes, the person you’re asking about worked here from date X to date Y.

Even so, I’d happily advocate for at-will employment plus a proper safety net if I thought it was a feasible political option in the US (unfortunately I don’t).

In terms of political feasibility, I’d argue that is much more likely than a heavily regulated French-style labor market (not to mention a hell of lot more desirable).

I’m not seeing that the seen/not seen argument is a specifically libertarian one, by the way.

Well, libertarians certainly include Bastiat in the pantheon, but if those on the left claim his as well, so much the better.

51

paul 10.31.07 at 4:18 pm

While I was working in an at-will state, for an employer whose political views sometimes differed from those of me and my colleagues, we determined that not only could he fire us for publicly expressing our views, but he could also fire us for failing to write letters to the editors of local publications advocating his views. It was sobering.

(And of course when an employer explicitly fires someone for exercising their rights there’s a brief backlash, but the nature of chilling effect is that for every rehired employee — if they dare go back to the workplace — there are 10 or 100 who think better of making waves…)

52

geo 10.31.07 at 5:00 pm

Henry (47): “I’d ask people to refrain, insofar as they can, from the temptation of arguing with brett bellmore. There are much more intelligent and interesting statements of the conservative and libertarian cases to be argued with if that’s what you’re looking for.”

Brett hasn’t said a single thing I’ve agreed with in the several months I’ve been reading CT, and I certainly agree that there are more intelligent libertarians and conservatives out there. But brett is generally civil and articulate, and his point of view is quite common and influential in the US. Europeans and others in more advanced societies than the USA may feel justifiably exasperated with him, but those who hope to shift American politics in a more humane direction will have to find a way to convince an awful lot of people who believe what brett believes. I suggest you all treat arguing with him as a form of exercise, a way to cultivate patience, tact, persuasiveness, and the other rhetorical and political virtues.

53

notsneaky 10.31.07 at 5:32 pm

rea,

There’s the word “claim” in that sentence.

54

jo 10.31.07 at 6:05 pm

Why would I want to give up a current individual right to allow the state to shutdown the voices of people Chris and Henry disagree with? How does this increase the power of my voice? It only seems to increase the power of Chris and Henry’s voices.

Putting the shoe on the other foot. Lets say I wanted to shut down the NY times because it has influence on the other major newspaper publications in the US. Are Chris and Henry advocating for this? If the answer is in any way no, then this entire line of thought is an exercise in increasing one point of view and not in in the creation of some sort of balanced voice.

55

a 10.31.07 at 6:52 pm

“As a matter of historical fact, between the Great Depression and the 1990’s we hadn’t seen a vast expansion of federal power relative to the individual. ” Between the Great Depression and the 1970s perhaps, but it’s been downhill since then, though, hasn’t it? It’s hard to see something like Humphrey-Hawkins even getting considered in today’s world.

Comments on this entry are closed.