Free Speech

Ordinary Woman Fired Because of Washington Post Article About Costume She Wore at Halloween Party Two Years Ago

Not a high-level official, not a spokesperson, not an endorser -- just an ordinary person.

|The Volokh Conspiracy |

In the Washington Post, there's a long article that's hard to suitably excerpt (and that's unfortunately paywalled); but this should give you a sense of the matter:

A middle-aged white woman [went to Washington Post cartoonist Tom Toles' 2018 Halloween party wearing] a conservative business suit and a name tag that said, "Hello, My Name is Megyn Kelly." Her face was almost entirely blackened with makeup. Kelly, then an NBC morning show host, had just that week caused a stir by defending the use of blackface by white people: "When I was a kid, that was okay, as long as you were dressing up as, like, a character."

Two other guests, one Hispanic and one black, confronted the woman and got into an argument with her ("You understand how offensive that could be to a person of color?" / "I'm Megyn Kelly — it's funny!") and on from there.

Nearly two years later, the incident, which has bothered some people ever since but which many guests remember only barely or not at all, has resurfaced in the nationwide reckoning over race ….

The Hispanic guest wrote in an e-mail that, "After the killing of George Floyd and the protests, I began reflecting more on this incident." And of course, after the woman who wore the blackface "informed her employer, a government contractor, about the blackface incident and The Post's forthcoming article, she was fired, she said." Not even for what she did on the job, not even for what she did on television, but for a costume she wore at a party at a friend's house; that, at least, is this incident, but next it will be for something someone said over dinner, or a joke in a conversation among acquaintances.

You might recall the circumstances of the famous "have you left no sense of decency?" response by Joseph Welch to Sen. McCarthy: McCarthy was trying to publicly damage the career of Welch's associate (at the prominent Hale & Dorr law firm) for having been—about five years before—a member of the National Lawyers Guild, which had defended Communists, and which had Communists as some of its founding members. And that became, understandably, one of the great lines still remembered from the McCarthy era.

Also worth remembering from Welch's response:

Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale & Dorr. It is true that he will continue to be with Hale & Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty, I would do so. I like to think I'm a gentle man, but your forgiveness will have to come from someone other than me.

There's no particular individual figure in this story like Sen. McCarthy. But there is a broad segment of a broad social movement happy to use personal destruction as a weapon—a segment that is so focused on the evil of its core enemies (Communism and racism both serve well here) that recklessness, cruelty, and loss of a sense of decency naturally emerge, and directed at far more than the true Communists and racists. And there aren't a lot of Joseph Welches who will stand by the people who work for them, and thus risk themselves and their enterprises likewise being targeted.

UPDATE: Robby Soave here at Reason has more on this; here's an excerpt:

Between the elite media navel-gazing, the smug sanctimony of the cancelers, the absurd one-sidedness of the narrative structure, the spirit of revenge taken to an odious extreme, it's hard not to come away feeling nauseated…. [It's] emblematic of the rising dual trends of activist journalism and unforgiving progressivism ….

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  1. It’s not just about winning; it’s about hurting the other side and making them feel bad. This is a terrible precedent. Would a person of color be fired for wearing white-face? If not, then this is discrimination by race and is a violation of the Civil Rights Act of 1964.

    1. It’s not just about losing, it’s about convincing yourself you are victimized and oppressed.

      I don’t think this person should be fired, but your reading of the law is not great.
      There are some pretty strong cultural distinctions between whiteface and blackface.

      1. You are a piece of shit.

        1. He is, isn’t he? I don’t think he was always like this, but the left in their descent have taken him with them.

          1. Yes. Now do you see why I desire a complete collapse and civil war?

            1. You “desire a complete collapse and civil war,” but he’s the piece of shit? It’s even funnier since it’s likely you “desire” those things because you somehow believe you’ll be unaffected by them.

              If I’m being too obtuse, you are the piece of shit.

              1. No, I know I’ll be affected, but America is so far lost that we need it to completely burn so we can rebuild.

                1. Funny, there are people on the left whose analysis is exactly the same.

                  1. Yes. Except the people on my side have agriculture, mechanical, energy, military, and other experience, while the people on your side know how to make Impossible Burgers, kill their babies, and have gay anal sex.

                    I know where my bets are going to be.

                    1. ★My last month paycheck was for 1500 dollars… All i did was simple online work from comfort at home for 3-4 hours/day that I got from this agency I discovered over the internet and they paid me for it 95 bucks every hour.

                      See—> Money90

          2. Brett, this is more telling about you than I.

            You are the one siding with the open white supremacist anti-American’s contentless anger at my statement. Maybe my invocation of victimhood seeking wasn’t clear – I clarified just below in response to SteveMG

            1. S0.
              It is “about me.”

                1. My last pay test was $9500 operating 12 hours per week on line. my sisters buddy has been averaging 15k for months now and she works approximately 20 hours every week. i can not accept as true with how easy it become as soon as i tried it out.

                  This is what do,…….► Home Profit System

            2. “There are some pretty strong cultural distinctions between whiteface and blackface.”

              Which has absolutely nothing to do with this. Either we have equal rights, or we don’t. Either white people have the right to wear black makeup, even if it offends blacks, or blacks don’t.

              Isn’t that the import of Gorsech’s Monday ruling? That if you wouldn’t fire a guy for having sex with a girl, you can’t fire a girl for having sex with a girl, it would be sex discrimination? How can this reasoning not apply to race discrimination?

              Because you think it’s right to be offended by blackface, but not right to be offended by ‘gay’ sex? That’s not a legal principle, that’s just, “My opinions should be law, and yours should mean nothing!”

              1. As has been pointed out, the parallel is inapt; should be to anyone wearing blackface. My bad.

                Also, funny to hear you talk about a right to employment, Brett. Or the free speech being protected by employment law. Right on, comrade!

                The act of loving a woman and the act of loving a man are the same, except for the sex.
                The act of putting on whiteface and the act of putting on blackface are different acts done by different actors.

                I’m not arguing from offense as respect to legality. Do you think the Civil Rights Act protects people wearing blackface?

                1. Man does X is fine, woman does X is not fine = discrimination.

                  Black does X is fine, white does X is not fine = not discrimination?

                  1. If X is wearing blackface, doesn’t matter if they’re black of white.

                    1. You’re… claiming that they can fire someone, black or white, for wearing dark makeup? Um, no.

                    2. Uh, yes. At will employment is the norm around here.

                      Sounds like you agree that sucks.

                    3. “At will employment is the norm around here.
                      Sounds like you agree that sucks.”

                      No, I’d prefer at will employment. But blackface is just dark makeup. But under title VII there’s no way you can fire people from wearing makeup that matches their skin tone. And under Bostock, you can’t fire people for wearing makeup other people wouldn’t be fired for.

                    4. But under title VII there’s no way you can fire people from wearing makeup that matches their skin tone.

                      Why not? That doesn’t sound like it relies on a particular classification.

        2. I only consider one person who regularly posts at this site to be a POS. Sarcast0 is not that person. I think I could probably reach agreement with Sarcast0 on a few issues.
          The POS is someone I will not name and will never respond to. All that person does is insult people and try to get them to respond in anger. That person is the worst kind of troll.

      2. “There are some pretty strong cultural distinctions between whiteface and blackface

        There used to be some pretty strong cultural distinctions between male and female.

      3. Who is convincing themselves they are “victimized” here? The people complaining about a person wearing a stupid black face costume at a Halloween party several years ago? Or the person who’s life is destroyed over doing it?

        1. Hey, Steve. Thanks for engaging.

          The victimization piece is not from the admittedly very dumb thing in the OP.

          It came from the post I replied to: “It’s not just about winning; it’s about hurting the other side and making them feel bad.”

          This is offered without proof. Just looks like trying to claim victimhood to me.

          1. Okay, here is some proof from the comments section at the Washington Post:

            Talicat:
            The comments on a major right wing news site are hysterical.
            Likethumb_up70

            Bozzy:
            Their tears are sweet!

            1. Oh, come on.

              People celebrating a victory including being smug a-holes at the sadness of the other side is a core human impulse. Not our greatest impulse, but not proof that the left now exists to make conservatives sad.

              I mean, how many do you think celebrated about liberal tears when Trump won?

              Humans being tribal animals says nothing about the core reasons for the movement.

          2. Or this comment:

            Ironically, conservative tears make the best lube!!!

            Try not to be butthurt about it (except, of course, in the good way. No one can discriminate against that anymore!)

            1. You…think these people stand for the liberal movement?

              I mean, making gay submission jokes rather shows he’s out of step with the latest leftist thinking.

    2. “this is discrimination by race and is a violation of the Civil Rights Act of 1964.”

      Good point!
      If “sex” can be whatever sex you think you are, then why can’t “race” be equally described?

      1. Being transracial didn’t go so well for Rachel Dolezal

        1. Was she actually fired or did she just resign from her position (was it with the NAACP?).

          1. Maybe she was forced to resign

        2. Being transracial didn’t go so well for Rachel Dolezal

          But that was then, and this is now.

      2. Indeed, how can you possibly punish a white person for wearing blackface, where you wouldn’t even notice a black person wearing it, without referencing race? By the reasoning of Monday’s decision, this is racist as can be.

        I think the real problem here is refusing to distinguish actual rights violations from merely offending other people’s sensibilities in an age when people are actively encouraged to be easily offended.

    3. Jimmy Fallon, Jimmy Kimmel, Sarah Silverman, Justin Trudea – all have worn black face in the past. All continue to remain popular with the Establishment media and draw a paycheck. Some people are just more equal than others.

    4. We’re on the way to a civil war. People just don’t see it yet.

      1. As an amateur vexillologist, I can’t wait to see the new flags!

        1. Sheldon has a fan!

          1. Don’t associate me with that show or character! It is nothing more than cultural nerd porn – a pseudo-identity for bored and lazy children. I’m stuck in my old ways and I like to re-watch Seinfeld episodes.

            1. Sheldon has a fan! . . . but that fan is too embarrassed to admit it. How adorable. Exactly how Sheldon might have reacted to the same situation.

            2. I could never get into SEINFELD; I never found it funny. But, if you enjoy it, great. Your criticism of BBT is fair; but I enjoyed a lot of it.
              My wife and I are at opposite ends of the political spectrum so we always look for shows we can enjoy together. BBT was one show we enjoyed together. Another show was THE GOOD PLACE.
              Another show that we enjoyed (at least early on) was FATHER BROWN. That is odd since we are Jewish. Father Brown’s reason for tracking down murderers was to try and save their souls; not about getting them arrested. There were a number of episodes that ended with the killer accepting responsibility for what they did and turning themselves in. Okay, it’s a myth. Still, it was a positive myth. Sadly, in more recent episodes, the killers have become more standard villains and the good padre has stopped trying to save their souls.

      2. Oh, I can see it.

        The DACA decision literally means that law is now irrelevant in America, and people are going to rationally conclude that they shouldn’t bother to obey the law, either.

        1. What was the legal reasoning for supporting DACA? Trump has the right to end DACA but he didn’t show his work in the legal documents?

          1. I think it was for showing the wrong work, not for not showing any work at all.
            If you want to fire me from your workplace, I’d suggest not proudly announcing, “I am firing him because he’s a filthy Jew.” Or, “I am firing her because she refused to give me a blow job.” The court seems to be saying here, “Rabbi HW. Give us another plausible reason why you *really* wanted to fire her.” Yeah, everyone knows it’s because I’m a Jew/refused to have sex with you/etc. . . but the court does not care about this fig leaf. If you can invent some [legally-permitted] reason after-the-fact, I suspect that it’ll be sufficient to survive judicial review.

            1. The work they showed was, “We’ve concluded this policy is, in line with several court decisions, illegal, and accordingly are going to stop breaking the law.”

              In what world isn’t that the right work to show? In what world do you have to justify ceasing to act illegally?

              1. There’s a second half of the coin about this too: how in the world can something that’s established by Executive Order by *one* President suddenly be unable to be cancelled by the Executive Order by *another* President?

                Or does the President in question matter? Had the *first* President decided “whelp, what I did was wrong! I’d better undo it now!” would it have been illegal?

                This decision doesn’t make a lick of sense!

                1. A lot of this type of the political process confuses me as well.
                  With the ACA, a lot of the problems were known from the beginning and Dems (after Brown was elected in place of Sen Kennedy) did their best to make changes. But they were prevented by Republicans, who said, “We will allow absolutely no changes, even if we 100% agree with the change you’re suggesting.”

                  So, the ACA got through the Senate with an overwhelming number of Dem senators. But now, under Trump, with a fairly narrow Rep majority (ie, nowhere near that 60-vote margin), they’ve been able to sabotage the ACA and gut it in many ways. My thought had been, “It took 60 votes to enact it, so it should take 60 votes to dismantle it…even if you’re trying to dismantle it in stages.” Nope, I was wrong. There does not seem to be any legal requirement that what is needed to enact/pass something is equal to what is needed to undo that.

                  1. I don’t mind making it easier to repeal laws than it is to pass them.

                    When it comes to repealing law, we should make it very easy. I think we should add a House of Repeals that would have the same number of Representatives as the House of Representatives, but their only job is to repeal laws, and that they can do so with a majority vote — and that such a repeal can only be overcome with 2/3 majorities in both the House and the Senate. And this should apply to all regulations as well, not just things that originate in the House or Senate.

                    We have far too many laws. We need a way to pare them down to manageable levels.

          2. The court is delaying the result; they will probably always find some problem with the Trump administration’s procedures on this issue until he is no longer president. This approach is going to make people who disagree with the opinion less respectful of the law.

      3. Eventually things have to swing back, there will be some correction? At least I keep thinking they will.
        But where is the counterforce to this? Who is standing up to it? Pushing back? When McCarthy abused his power we had the media and other institutions checking him. Within two years McCarthy’s career was over. He was censured by the Senate and he was done.
        I don’t see any pushback here. Our liberal friends are in full retreat. They so hate Trump that their moral compass is skewed. Opposing Trump is their lode star and they don’t care now about anything else.
        I detest Trump too but that can’t be the only goal?

        1. Good point, Steve,
          Other than trying to effect change for workplace safety, protect access to health insurance, environmental protections, addressing police brutality, raising taxes on the filthy rich, improving relationships with friendly foreign countries, protecting a woman’s right to control her own body, prisoner rights, gay rights, disabled rights . . . why, they’ve hardly done anything other than trying to disembowel Trump.

          (The fact that they have not been able to succeed in doing much of the above is, of course, completely understandable, given that there is a Republican in the White House, and Whore McConnell refusing to allow votes in the Senate on pretty much any “Democrat” issue that comes out of the House. Obviously, you do not blame Democrats for that obvious political fact…and that’s why you properly framed the question as “What have Dems been *trying* to do?”, rather than, “What have Dems been able to accomplish under a Rep. Senate and Rep. President?”)

          1. “Daddy, what do taxes pay for?” – Todd Flanders

            “Oh, why everything! Policemen, trees, sunshine, and let’s not forget the folks who just don’t feel like working, God bless ’em.” – Ned Flanders

      4. LOL y’all ain’t gonna do shit except peck at your keyboards. No one is going to “rebel” other than probably a few psycho Trump supporters shooting up some businesses. Biden will win in November and things will return to relative normal, a vaccine will probably be manufactured in large quantities by then for deployment in Jan/Feb/March time frame.

      5. I fear that you are correct.
        I don’t see how normal people can live with progressives.
        If we do not allow some coastal areas to secede, there will be war.
        Even though the left is incompetent at anything real, the Russians, Chinese and Iranians will make sure they have plenty of ammo and “advisors” to prolong the war.

    5. “It’s not just about winning; it’s about hurting the other side and making them feel bad.”

      Not clear what you are talking about, the famous Welch v. McCarthy exchange, the WaPo story, or both? Yes, Welch “personalized” it to in effect give McCarthy the punch in the face he so richly deserved, and it was a masterful one. I doubt “making (McCarthy) feel bad” was much on his mind, especially since making him “feel bad” was as likely as making the sociopathic Trump regretful of any injury he did to anyone.

      The word “precedent” is legally meaningless with respect to the WaPo story, since no court decision involved, and in particular not a reported appellate court decision.

  2. But per the Bostock reasoning, the question isn’t whether a person of color would be fired for wearing white face, but whether a person of color would be fired for wearing black face. Seems like she’d have a pretty strong claim of having been fired on account of race?

    1. Now see, that’s how you tweek a judges nose. Apply their logic to the letter to a case they’d hate to see the results of.

      1. If I recall correctly, there was an event in a public school where a black school guard repeated the word “nigger” after it was used by a black student. The school’s zero tolerance policy resulted in the guard being fired but the public outcry caused the school to backtrack and rehire the guard. Again, some people are more equal than others.

        1. That sounds like the “stop and frisk” trick in the era of “we don’t do marijuana arrests”.

          The police would order them to empty their pockets. Then, if there was pot in the contents, they would arrest them for publicly displaying the pot, which was an arrestable offense.

          As judge Sullivan said… “This is not a trick!”

    2. the question isn’t whether a person of color would be fired for wearing white face, but whether a person of color would be fired for wearing black face

      Similarly, laws against gay marriage aren’t unconstitutional because they treat gay and straight men the same way — they both have the right to marry a woman!

  3. Anti-racism is a scourge; it is a plague; it is the very quintessence of profligacy; and it needs to be forcibly and mercilessly eradicated.

    1. Anti-racism is the very thing it purports to hate the most.

      1. C.S. Lewis once wrote about the “tyranny of the victim.” It’s a tough argument since we all have compassion for true victims. But we now have this sort of “tyranny” in defense of anti-racism. People’s lives can be tossed aside for the goal of fighting racism.
        Even laudable goals – opposing Stalin, Hitler, racism, et cetera – can be corrupted. This is an example of it.

        1. Here is Ibram X. Kendi’s proposal for fixing the US Constitution:

          “To fix the original sin of racism, Americans should pass an anti-racist amendment to the U.S. Constitution that enshrines two guiding anti-racist principals: Racial inequity is evidence of racist policy and the different racial groups are equals. The amendment would make unconstitutional racial inequity over a certain threshold, as well as racist ideas by public officials (with “racist ideas” and “public official” clearly defined). It would establish and permanently fund the Department of Anti-racism (DOA) comprised of formally trained experts on racism and no political appointees. The DOA would be responsible for preclearing all local, state and federal public policies to ensure they won’t yield racial inequity, monitor those policies, investigate private racist policies when racial inequity surfaces, and monitor public officials for expressions of racist ideas. The DOA would be empowered with disciplinary tools to wield over and against policymakers and public officials who do not voluntarily change their racist policy and ideas.”
          I have a lot of problems with Professor Kendi’s proposal.

          1. Why not call it the committee of public safety?
            The comparisons to the French revolution and today are very apt.

      1. There’s a very easy solution for anti-Semitism. Change your name and disassociate with anyone in your family still identifying that way. Worked for me.

        1. Um, sure. By making a conscious and deliberate decision to use an online username that ends in “berg” . . . yeah, right; you’re Totally disassociating yourself with your Jewish identity. I totally buy it.

          1. My user name is my birth name. My current legal name, the one I’ve been using socially and professionally for over 30 years now, is not even close to it.

            1. Exactly. Your online presence screams out, “I am a Jew.” I stand by my observation that this public act is the opposite of you disassociating yourself.

              My suggestion: Change your username to “IRegretMyJewishHeritage” or the like. I’ll believe your claim at that point.

              1. Not just regret it. Am severely ashamed and embarrassed of it. To the point where no one in my Gentile wife’s family knows of it.

                1. I’m confused… is your Jewish family a bunch of anti Semites or to avoid anti-Semitism you changed your name and disassociated with your Jewish family?
                  If a) then … weird… self-hating Jews
                  if b) then the anti-Semites won. they keep their ways, you change yours…
                  what am i missing here?

        2. My parents were Jewish. My dad changed his name in 1934, right before leaving on a round the world trip. He has a very Jewish surname and he anglicized it. Back in those days, you had real NSDAP party members around the world looking for Jews to abuse.

          1. Yup. I changed mine back in the 80s shortly after leaving for college. Very few people know my birth name.

        3. That 1. Doesn’t sound especially easy and 2. Doesn’t seem especially likely to work. (Most anti-semites hate the self-loathing Jews as much as any other kind, in my experience.) At any rate, I’m not sure the making all Jews disappear is as compelling a “solution” to anti-Semitism as you suggest.

          1. If you do it right, no one even knows.

            1. “Futurama” reference???

            2. Futurama ref….
              i see what you did there 😉

  4. Isn’t this firing based on negative stereotyoes about racial behavior, the idea that certain behavior doesn’t conform to approved racial roles?

    If so, then wouldn’t that make the firing because of race?

    1. I suppose it won’t be long before we see whether Gorsuch’s reasoning in Monday’s case was really how he thinks, or just pretext to arrive at the result. Because it certainly would.

  5. I oppose this firing. I would support making this type of firing illegal.

    That said, people who love employment at will and favor keeping government out of the hiring process really can’t complain that this particular employer used at-will in a way they disagree with. If you support hiring and firing at will, you really can’t complain about this result.

    1. I concur with you to the extent that the real reason this woman was fired was because the employer genuflected to the mob and that her costume had no relation to her job performance.

      Yes, the firing of this woman is compatible with employment at-will as would be the discharge of a negro who expressed support for the anti-life, terrorist organization, Black Lives Matter.

        1. If Libertymike wants to tell the world he’s a racist, what’s the problem?

        2. I doubt if you’ll have much luck convincing that weirdo of anything. Racism is a core part of his identity.

    2. That’s ridiculous. Of course we can support the idea that government should have little to no role in firing decisions while still thinking that a business owner was wrong about a particular decision.

      I, too, oppose this firing. But making it illegal would be a far greater evil over time.

      1. Libertymike, and Rossami, at one time people were fired for being pro civil rights and pro gay. Today, people get fired for being racist (real or perceived) or anti-gay (real or perceived). In both instances, the consistent theme was that having unpopular social views could be very costly economically, and if you have unpopular social views, you better keep them to yourself.

        What has changed is what is an unpopular social view. And what you guys don’t seem to realize is that it harms society itself to punish people economically for having unpopular social views. Because no matter what your social views are, if you wait long enough, the pendulum will swing and they’ll be unpopular, and it will be your neck on the chopping block.

        So Rossami, I flatly disagree that making such firings illegal is a far greater evil over time. The far greater evil is the damage done to full, unfettered discourse about social issues by letting people know they risk getting fired for having an unpopular opinion. The fact that the First Amendment means you’re not going to be jailed for having an unpopular opinion is cold comfort to people who can’t feed their families because they have unpopular opinions.

        1. That goes too far. Nothing in the First Amendment or the broader tradition of Free Speech was ever intended to completely insulate a person from the consequences of their actions or speech.* Robust debate is about trying to change people’s minds. Otherwise, it’s just yelling at each other. Changing minds necessarily includes accepting responsibility for the consequences of your speech and actions. The First Amendment merely says that government should not put a thumb on the scales.

          To follow your reasoning to it’s logical conclusion, you would have to make boycotts illegal because they deprive a person (lots of people, actually) of their ability to make a living because of their unpopular speech. Yet boycotts are one of the most effective drivers of social change. And they are speech in their own right.

          Beyond that, consider the consequences of making boycotts illegal. Do you really want to government telling you that you must shop at Masterpiece Cake because you disagree with their speech? How would they enforce that? Go through everyone’s financial records to make sure that their cake-buying is non-discriminatory? That would be a ridiculous expansion of government power.

          * Tenure is, arguably, an exception to the general rule that free speech still has consequences. I do not, however, think that tenure is a good model for the rest of society. I don’t even think it’s a good idea in academics. It has too many perverse consequences of its own.

          1. I haven’t said people should be completely isolated from the consequences of their speech. And I haven’t said a thing about boycotts.

            What I will say is this: In between the extreme of people with unpopular views having no protection at all, and employers having no discretion to hire or fire at all, there lies a middle ground. It’s not all or nothing. Your insistence that it be all or nothing is a false alternative.

            1. You misstate. We are already in the middle ground between ‘no consequences’ and ‘you can be jailed or even killed for your speech’. Remember that the latter rule was the norm across most of history (and still is across most of the world). You want to move the middle ground from ‘no adverse legal consequences’ to ‘no adverse legal or economic consequences’.

              I am merely pointing out that you can’t get to ‘no adverse economic consequences’ without a whole lot more government intrusion and loss of freedom than any possible gains.

              1. I didn’t say “no” adverse consequences.

                I see government and corporations as each being inherently untrustworthy, and I see a need to play one against the other to keep each of their worst impulses in check. We can quibble about where exactly to draw that line, but it makes no sense to me whatsoever for what I will call the little people to unilaterally disarm by refusing to use the one institution that in theory acts in their interests. If not for government regulation, the corporations would screw us far worse than they already do.

                From your side of the aisle, I’m hearing a lot about theoretical harm, like loss of liberty. I’m not hearing so much about any practical bad results that would come from telling employers they can’t fire people because of their social views. It would probably do a lot to reduce the volume of the internet mobs, because if they know an employer can’t legally fire someone for having views they disagree with, a lot of their incentive to harass employers goes away.

                But which side suffers more harm is a question of fact, which is ultimately irrelevant to the libertarian argument some are making that the government simply has no role (or a very limited role) in the free market, on principle, no matter how the harms play out. And that’s what I reject. If you think you have a good argument on the facts for why such a law would leave us worse off, let’s hear it.

                1. Ah, I think I see the problem. You are missing the point that your position is logically inconsistent and inherently discriminatory. You are saying that employees must be protected by government from the economic consequences of their speech but that sole proprietors deserve no such protection. You are also saying that the employees are only protected when people you disfavor (employers) object to their speech.

                  That’s the only way I see to reconcile your apparent position that firings should be illegal but boycotts are still okay.

                  1. When did I say that sole proprietors don’t deserve protection? Or that boycotts are OK? If you want to discuss stuff I’ve actually said, that’s fine, but please don’t make stuff up. (And no, I did not just say that SPs DO deserve protection or that boycotts ARE NOT OK; at this point in the discussion I haven’t taken a position on them. I’m just saying don’t put words in my mouth. We’ll get to them if we get to them.)

                    Better yet, we can discuss the actual point I did make about the need for the little people to not unilaterally disarm, and that practical harms outrank theoretical ones.

                    1. How soon we forget what a sea change it was for Disney to give gay partner rights to benefits of employees. This was long before gay marriage was more than a pipe dream.

                      Texas amd other states tried to make it illegal for private corporations to do this voluntarily at that point.

                      Millenia of social ostracism oppression, often accompanied by legal repression, has lost control and now the shoe is on the other foot. Some of you loved that world, enjoy its descendant.

                      My gripe is for all those millenia, all people wanted was to be left alone and not oppressed. I can hardly blame them for a neck throttling of society at the moment. My only hope is for it to ease back down to mutual tolerance, the desired goal for those millenia.

                      History suggests not, though. 🙁

        2. I disagree. The difference now is that instead of physical mob having to congregate outside your business, a digital mob can form on the Internet and social media sites by people who would never normally patronize your business. This turns Internet radicals into super stars and prevents local dialogue from resolving minor conflicts. Without the cacophony of rage from the Internet, most businesses would likely take their time to weigh both sides of the argument before making a decision.

          An example – in San Francisco, a woman complained about a neighbor painting “Black Lives Matter” on the front of his house. After the Internet lynch mob caught wind of this, the woman AND her husband were fired from their jobs. No reasonable person would consider the husband guilty of the supposed crimes of the wife but with an Internet lynch mob bearing down on both companies, the decision to cut them both loose was an easy one.

          1. But some of our liberal posters (see above) say this is people acting victimized.
            See the people demanding that these others be fired, lives be ruined are not acting as victims. No, the people whose lives are turned upside down over these trivial transgressions are the ones acting victimized.
            Strange times we live in, very strange.

            1. If you’re referring to me, I don’t think I’m getting across what I’m saying.

              All this outrage hysteria about going after people’s jobs for molehills is bad and should end.

              It is not proof whites as a class are being oppressed.

              The ones acting victimized are not the victims – and they are victims – that the OP and the post you’re replying to lay out. It’s the people, some of them posters in this thread, claiming that whites are the new victimized race and anti-racists are racist against whites.

              1. STOP looking as “whites as a class” — and everybody else while you are at it — that is how we got into this trouble in the first place. Take people (and their cases) individually.

                1. Some things affects people *because of* some group or other that they are in. That needs to be addressed on a group basis, or it will never improve.

                  I take your point about whites, who are not really a class. Except that I’m *pushing back* at people complaining on behalf of whites as a class.

                  1. Either all are or none are — cut the crap.

                    Even an illegal alien has human rights that are universal and the US government is bound to recognize.

                    Your way un unAmerican, destructive and will lead to nothing buut disunion.

                    1. History shows if policymakers ignore things that effect a group (discrimination, medical stuff, disparate impacts) it does not somehow erase those things. Not even discrimination.

                      Doesn’t even need to be race. What about class? Do you think in forma pauperis shouldn’t be a thing because it recognizes issues relating to poor people?

                    2. Forma pauperis STILL treats individuals as individuals (anybody of any race is taken care of.)

                    3. It does not treat people of any socioeconomic class the same, though.

                      Sounds like more disunion to me!

                    4. The same and equal do not mean the same things

        3. Some people are just unpopular. It is important for the law to protect unpopular people. We don’t want them to get punished (criminally or civilly) just because their personalities put some people on edge. People with Asperger’s Syndrome for example. You should only be punished for doing bad things; not for being unpopular.

      2. But making it illegal would be a far greater evil over time.

        No. There needs to be a balance of terror — the government needs to put its thumb equally on both sides of the scale.
        I think you will find the employer fired her out of fear that there’d be discrimination complaints if it didn’t. Well, that’s an evil needing to be balanced by an equal evil.

      3. I have no problem with the firing given the at-will employment issue — assuming, of course, that this person isn’t a contracted exception to at-will employment.

        I *do* have a problem with making a public example in a *national* newspaper about something that was, for all intents and purposes, *private*. There’s no reason why this story was newsworthy. There’s no reason why the person had to be named in the story.

        I hope Washington Post gets sued over this. I hope that they are taken to the cleaners.

    3. Not for so long as there are “protected classes.” It should be all or nothing.

    4. After Bostock, we should really just go all out and say employees can only be fired for work-related reasons. This would also put a dent in the cancellation culture. Employers response to the mob would be to shrug and say our hands are tied by the law.

      1. I’m coming to this conclusion too. If every gender, race, and religion is part of a protected class, the libertarian dream of free association is dead. Why continue to allow leftist mobs the ability to threaten one’s employment because they speak their mind in public?

      2. I’m in.

        Worker’s rights to own the libs!

        1. Handouts for families with children worked for PiS in Poland.

    5. That said, people who love employment at will and favor keeping government out of the hiring process really can’t complain that this particular employer used at-will in a way they disagree with. If you support hiring and firing at will, you really can’t complain about this result.

      No; that’s a common error non-libertarians make.

      That I think X has the right to do Y does not mean that I “really can’t complain about” X doing Y. To think so is a category error.

      1. Ok, so it’s all right to complain so long as the government can’t do anything to fix anything. Got it.

    6. That said, people who love employment at will and favor keeping government out of the hiring process really can’t complain that this particular employer used at-will in a way they disagree with. If you support hiring and firing at will, you really can’t complain about this result.

      That makes about as much sense as saying that if you support freedom of the press, you can’t criticize the Washington Post for publishing the article in the first place, or that if you believe in freedom of speech, you can’t point out that your comment is incredibly stupid.

      Believing that people should have the right to do something doesn’t mean your obligated to agree that every possible way of exercising that right is a good thing, and criticizing something doesn’t mean your required to think the government should ban it.

      1. “…criticizing something doesn’t mean [you’re] required to think the government should ban it.”

        Leftists don’t grasp the distinction between “wrong” and “illegal.”
        For a leftist, if X is wrong, X should be banned. No distinctions. Murder, assault, jaywalking, not recycling, not having health insurance, not hiring blacks/women/gays, offensive comments, picking one’s nose in public, growing too much wheat, not eating broccoli — any activity (or lack of activity) can warrant state interference. (And there is no limit on the extent to which the state may interfere with the refractory individual.)
        Of course, the obverse is that if X is legal, it can’t be wrong. Once the democratically-elected people’s representatives declare the killing of Jews (or the “expropriation” of “capitalists”) to be conducive to the common good, and the duly-appointed appointed judges uphold the legality/constitutionality of such measure — that’s the end of the story!

        1. Jews will only have civil rights so long as a majority of the US Supreme Court rules that they have such rights. If a future Supreme Court rules that Jews are not human and, as such, do not have civil rights (regardless of what statutes or constitutional amendments are enacted), then Jews lose those protections.
          I am carrying the argument to an absurd extreme to make a point: the law now consists of only those rules that a majority of the Supreme Court wants to enforce.

          1. So you think Roberts and Gorsuch are both sekret liberals and into ruling in bad faith?

            Because of how hard you disagree with their opinions?

            1. The difference between secret liberals and public squishes under pressure is kind of vague. But, yeah, we think they’re ruling in bad faith at this point.

              Look, we have multiple circuit splits concerning a fundamental enumerated right, and the Court isn’t taking the cases. From no legal perspective is that a good faith act, so that the Court is acting in bad faith is established.

              The only question is whether any particular ruling is bad faith.

    7. If you support hiring and firing at will, you really can’t complain about this result.

      The fact that I wouldn’t make it illegal (i.e., that I support employment-at-will) doesn’t mean I can’t complain about it. I support the First Amendment too, but I still have the right to complain about people who say stupid and hateful things.

  6. All people suck.

    1. I know how you feel. I hope we both feel better soon.

  7. It does seem she has a claim under Bostock. If firing people for having a transexual appearance is sex discrimination, why isn’t firing people for having a transracial appearance race discrimination? This sort of “it horribly offends me” type thinking seems exactly what Bostock is for.

    And Bostock makes clear that the purpose of the Civil Rights Act is to prohibit the act of discrimination, not to prohibit particular individuals or groups.

  8. I appreciate that you have had your own recent issues. But this is … not a great look for you, Prof. Volokh. It is, in fact, the very definition of tone-deafness.

    Now, at the same time that many Americans are struggling with the issues of race, both structural and individual, that have plagued our great nation since its founding; when we see that there is a vast outpouring of thought, word, and deed that not only forces the issues of the past to light, but the issues of the present; and when many finally grapple with the connected issues of race, poverty, and state-sanctioned violence ….

    You create a paean for the supposed real victims here; the white people of America, who must suffer the indignity of, perhaps, dealing with the racial past. You do this, knowing full well that the excess of racism, evident not just in the news, but in the comments in your on forum, cannot be avoided.

    As to the merits, we both can understand that people get fired every day by private employers for all sorts of reasons; good, bad, and none at all. Especially now. For you to equate this and invoke the McCarthyite hearing (which, ironically, many of the people that are ideologically associated with you are trying to rehabilitate – or as the youth today put it, “retcon” as being justified) is not just, as I wrote, tone deaf, but will nothing more than justify the self-serving please of victimization of those who least need it.

    1. A victim is a victim. The cancel culture is a real thing and there is nothing wrong with discussing it. It doesn’t dilute the discussions of racism, structural or otherwise, that are ongoing. Nothing is served by claiming that white people’s problems are inconsequential and discussing them will somehow drown out the other.

      1. The apocalypse must be nigh, because I think I agree with donojack. I support BLM’s mission, and mostly its tactics. How does that conflict with my also being bothered by what happened to this woman, assuming as I do that her only wrongdoing was an ill-considered but malice-free choice of an offensive costume?

        That doesn’t mean I equate what happened to her with the gravity of the wrongs BLM combats. Does writing about the former but not the latter mean Eugene equates them? I don’t know. I have little confidence in my ability to discern someone’s beliefs based solely on his decision not to write about them.

        1. “malice-free”

          She was filed with malice. Kelly who had been on FoxNews was from the other tribe so a proper subject for mocking.

          Her being burned is just poetic justice.

          1. Bob, given your love for the tribal hammer, you’ll forgive me for not holding in the highest regard your ability to recognize a non-nail.

        2. Because, Leo, I read the article. Parts of it are heartbreaking in terms of the misunderstandings that occurred. But do you know what?

          At the end of the day, people are fired all the time for all sorts of reasons- good, bad, and none at all. I don’t see any real legal analysis here (I don’t think that this state will have a public policy exception for “wearing black face in an ironic, if ill-conceived, manner”).

          You’ve been here as long as I have; given the gravamen both of what has happened around this country, and what has happened recently to Prof. Volokh, I think that this subject is telling. Sometimes, negative space speaks volumes.

          Much in the same way that we saw articles castigating people complaining about the so-called p*** server that Kozinski used, but crickets after you-know-what.

          As a long-time admirer of his work on the First Amendment who has cited to his work in briefs, I am saddened that he is attempting to equate long-overdue efforts at dealing with racism in America with McCarthyism.

          The comments are predictable; he has managed to elicit both the racism and amazingly the McCarthy defenders.

          That’s … pretty impressive. But hey- the company you keep, and all that.

          1. I get your selective outrage argument, but that doesn’t mean the firing shouldn’t be condemned.

            Though I don’t disagree that invoking McCarthyism is generalizing to an extent that I don’t think is supported by these anecdotes.

            1. It’s more than selective outrage, Sarcastro. About a year ago, I remember watching a video about Tucker Carlson (on youtube, maybe). Anyway, it had the usual soundbites where he was cackling about how elite was, etc. But what I remember was the juxtaposition of what he covered on his show (BS stories designed to rile up the base and make them feel angry at millennials and the “elite” and POCs) as opposed to what was actually happening in politics (giants tax cuts for the wealthy and elite like him).

              It’s the same here. Look, I can certainly sympathize with someone who thinks they have been treated unfairly. But for Prof. Volokh to write this long, (self?) pitying, completely tone deaf article essentially saying that the real victims, just like in the McCarthy era, are white people … because god forbid there is a conversation about race now … is beyond pathetic.

              Yeah, I get it. A person made a bad choice (we can agree on that, right? wearing black face to a party TWO YEARS AGO is not a good choice … no matter how ironic or edgy or dumb the person was for doing it) and they got fired. I am sympathetic, because I don’t think the person meant to do harm. But do you know what?

              There are black people that have not received this type of treatment from Prof. Volokh. I watched that video. I’ve seen, over and over again, black people get murdered, and not only is there an absolute EFFING SILENCE from the powers that be on this blog, but I see the toxic shinola in the comments. “Oh, I bet he had a rap sheet. He must have been on drugs. You need to listen to the police.”

              Over and over again. So if people have the smallest possible violin after decades and decades of bull, maybe there is reason for it. If Prof. Volokh feels it necessary to provide this type of commentary for the many people that pop up in the comments, then that is a choice.

              As it is, I will tend to believe that this is simple an error, born out of the frustration of the whole “n word” controversy that he recently went through, and not symptomatic of a darker turn.

              1. So, people can only be upset about what you are upset about. Their feelings and agency are subservient to your need for moral outrage

              2. You are full of it. The Volokh Conspiracy has had their share of stories about concern of people being murdered. Indeed, VC has been one of the factors as to why I’m opposed to SWAT teams.

              3. You also seem to be completely ignoring the role of the Washington Post in this incident.

                The crux of the story isn’t “white woman gets fired for doing something on the spectrum between ironic and ill-conceived.”

                It’s “Washington Post outs a random, private citizen, for doing something (two years ago) that some find offensive.”

                That’s a story. That’s scary.

            2. My fear is that the Washington Post did not really believe that what this person did justified being fired; my fear is that the Post fired the woman in order to avoid being in the middle of a controversy.

              1. She didn’t work for the Post. Another company fired her.

                1. I stand corrected.

          2. I have no idea whether EV’s aggrievement over his recent notoriety informed his decision to write this post. One of my pet peeves is the ubiquity of internet mind readers, so I try extra hard to avoid the practice myself. I do concede that broad inferences can be drawn from EV’s silence during the Kozinski episode, but nothing I’d fault him for. Up to a point well short of Trump Jr., I grant everyone dispensation to stand by friends and loved ones.

            While I share EV’s objection to cancel culture, and I don’t read what he said as equating it with McCarthyism, he does imply a closer similarity than I think justified. That said, as rhetorical excess on the Internet goes, it’s pretty mild.

            And the comments? Well lol. Vile though it is, VC’s comment section is the Algonquin roundtable of Reason comment threads. What a cesspool.

            1. I am not sure that all of this is unrelated, Leo.

              I mean … cancel culture? Do you think, perhaps, that a person who clerked for Judge Kozinski (and knew him well, had Kozinski officiate at his wedding, friends, etc.) AND blogged in defense of the Judge’s p***/gag server, and (likely, given the friendship) received the “gag” emails that were the subject of controversy … would be concerned that a judge could be “cancelled” over something so small (ahem) as sexually harassing other (female) clerks?

              I mean, we wouldn’t want his future prospects, such as arguing before the Ninth in important cases, to be curtailed because he was cancelled, right? Let’s ignore the long-lasting implications his decades of conduct had on some of his clerks and instead worry about him being canceled.

              I’m only noting that this severe concern with “cancel culture” seems to exist to protect those with power in order to keep it, and to ensure that we get truly worked up about “mistaked” and what is “fair” for people that have power, so that we might continue to ignore the plight of those without it.

              Shorter version: by riling up people about so-called “cancel culture,” what you are doing is reifying that which already exists. You are attempting the shift the focus of the conversation away from the actual victims, and try to concentrate the conversation on people that are whining about how long they have to wait for their “mistakes.”

              Sorry …. not terribly worried about it.

              1. I think it’s time to dox loki13, comb through his entire internet existence, and then harass loki13’s employers until loki13 is fired from his job, and made unemployable for the next few years.

                This is, after all, what’s been happening, again and again, to people who are otherwise nobodies.

                Then again, maybe the sauce that isn’t good for the gander, isn’t good for the geese, either….

        3. You are probably troubled because you see the potential harm that these decisions can cause.

    2. You would never be the first one to stop clapping, hoping against hope, red faced from strain, you would clap on and on until someone braver than you did it first.

    3. Libertarians are trying to justify Red Scare hearings?

      (Tone deaf? For saying, to paraphrase, “mocking Megyn Kelly with stupid makeup because she said blackface was okay for a character representation” is not something to get fired for?

      I guess, if “tone deaf” means “something knee-jerk Progressives will dislike”.

      This has nothing at all to do with “race, poverty, and state-sanctioned violence”, remember?

      Nor is there any claim that the “REAL victims” are “white America”; “real victims” suggests that other victims are fake, or that this “victim” is primary.

      But that’s only in your imagination, not Prof. Volokh’s text.

      I award you no points.)

      1. Historical note: tailgunner Joe did in fact find communists in the government, doing what communists do.

        1. National Lawyers Guild was also in fact a Stalinist front organization.

        2. Historical note: McCarthy was also DRUNK — he was considered an alcoholic by the standards of the 1950’s — and *everyone* back then would be considered one today. It literally killed him a couple years later.

          I’m not saying being drunk was an excuse, but the KGB files we got access to when the Soviet Union collapsed gave clear evidence that the people he was going after weren’t blushing virgins, either.

        3. Not only that, but the person that McCarthy claimed to be a communist in government — the one for which he was scolded over, being asked “Have you no shame?” for revealing his name — really was a communist in government

          1. The “Have you no shame?” scolding was not about revealing a Communist in government. It was (as Prof. Volokh’s original post made clear) about his revealing that Fred Fisher, then a Hale & Dorr associate, had once been a member of the National Lawyers’ Guild, which was arguably a Communist front.

            (Not only did Fisher not lose his job, but he went on to make partner at Hale & Dorr and be elected as president of the Massachusetts Bar Association. And the National Lawyers’ Guild is a well-respected “progressive” legal organization. If I were a 3L looking for employment at a BigLaw firm today, I’d be a lot more reluctant to put the Federalist Society on my resume than I would the NLG. But I’m sure that’s only appropriate. After all, the NLG (and, when you get down to it, even the CPUSA) were genuinely trying to build a better world, must like Antifa today, while the Federalist Society is a bunch of white straight cishet male Koch-suckers and their hangers-on, seeking to bolster racism and fascism.)

            1. I forgot to mention that the Federalist Society is a bunch of clingers soon to be replaced by their betters and who need to open wider. (h/t to the Rev)

            2. If I recall correctly, though, the Senator who said “Have you no shame?” was particularly angry because Fred Fisher was working for him as an aid at the time, so yes, he had a role in government.

    4. “Tone-deaf” is the accusation people use when they know they can’t argue the substance of an issue. Something not being “a good look” is what someone obsessed with appearance over reality complains about.

      He finishes off his river of word vomit with a claim of guilt by association, not recognizing the irony of making such a claim about an article referencing McCarthyism.

      Loki13 is second worst commenter on here, falling short of the toxicity of the Reverend, and just edging out the increasingly demented Sarcastro.

    5. But this is … not a great look for you, Prof. Volokh. It is, in fact, the very definition of tone-deafness.

      “All sheep and no shepherd.
      Everyone is the same, everyone wants to be the same.
      Anyone who is different goes voluntarily to the Madhouse.”

      — Friedrich Nietzsche

    6. Sure people get fired everyday. But the Supreme Court just held that people can’t be fired because others find their transgender appearance offensive, such a firing is discrimination based on sex.

      Here, someone has been fired specifically because someone found found their transracial appearance offensive. Why isn’t this racial discrimination under Bostock? And why should overt racial discrimination get a “people get fired for all sorts of reasons, don’t worry about it response?” Wouldn’t concern about racial justice call for even greater concern about and sensitivity to overt racial discrimination, not outright obliviousness to it?

      Perhaps you think Bostock doesn’t apply and her firing wasn’t racial discrimination. But you haven’t even attempted to make an argument to distinguish this case from Bostock. Is the reason you’re telling us not to worry about it because you know you don’t have such an argument? If not, what is it?

      1. It isn’t racial discrimination under Bostock for the reason Nonrandom.Set explained above. The issue is whether a white employee and a black employee would be fired for doing the same thing. So the relevant question is whether a black employee also gets fired for putting on blackface makeup.

        1. It’s unlikely that a black person would be fired for wearing blackface makeup. So do you think she has a claim under Bostock?

        2. Was it even “blackface” makeup?

          Or was it makeup specifically designed to complement black skin and to conceal the stuff that women want to conceal? And if that is the case, then it clearly is racial discrimination as who says who can buy what products?

        3. I’m pretty sure people wear makeup that complements their skin tone all the time. Under Bostock, you can’t fire someone for wearing makup that’s a different color than their skin tone.

        4. So you’re suggesting there is a factual question here: Is this makeup that a black woman would wear?

          1. Assuming this is the right question, and the woman involved wore makeup that could be wearable by a black woman, would you agree that the woman has a case under Bostock?

          2. Also assuming this is the right question, if a transgender woman wears something or puts on something that’s different from what a cis woman would wear or put on, would it be your position that Bostock wouldn’t apply, the trans person isn’t actually behaving like a cis person in that specific respect, and hence there is no discrimination if the trans woman is fired for it?

          As a specific example, if cis women don’t wear makeup designed to make a biologically masculine face look more feminine, but a trans woman does, would you agree that a trans woman who does this isn’t behaving like a cis woman, is in fact behaving exactly like a trans African-American who puts on makeup designed for white people to look blacker, and if this occurs cis women are just as fully entitled to be horribly offended by it and fire her over it without implicating the Civil Rights Act?

          1. “So you’re suggesting there is a factual question here: Is this makeup that a black woman would wear?”

            I’ve seen her picture, and I’ve seen actual “blackface”, and she was wearing makeup for black people, not “blackface”. There’s not really much question about it.

        5. ” So the relevant question is whether a black employee also gets fired for putting on blackface makeup.”

          Blackface makeup is makeup worn by a white person to appear black. If it’s worn by a black person, it’s not blackface makeup.

          1. That would be true, except that historically, blacks did apply blackface for the same kinds of routines that make blackface the problem it is today.

  9. First, I hope no one shows the ostensible object of compassion by showing her that some refer to her as that “ordinary woman.”

    Second, does the “broad social movement” that troubles the author include players who kneel, those who would ‘cancel’ the kneelers, Colin Kaepernick, and Donald Trump? Does it include Wheaton College and Larycia Hawkins? Asheen Phansey? Gillette? Etc.?

    Third, what has become of the conservative principle of freedom of association, which strives to accommodate the employer who wishes to fire an employee for being gay, black, female, foreign-looking, foreign-sounding, or inclined to appear in blackface?

    Fourth, this criticism of “cancel culture” would be more effective had it been advanced by an author whose Board of Censors cancels commenters for the offense of making fun of conservatives.

    Other than that, though, great post!

    1. No one has fired Kaepernick. He still draws a salary from the NFL but no team will hire him because they would be paying to join a controversy. Go back to preaching heresy at Bob Jones University!

      1. No, no one will hire him because he isn’t that good a football player. We’re talking about the NFL, folks, the people who were happy to hire dog-fighter Michael Vick (once he got out of the Big House). (And don’t tell me that people in this county aren’t as solicitous for the welfare of cute dogs than they are of people like George Floyd.) Why? Because he does amazing things on the football field. If Kaepernick were as good as Vick, he’d have no trouble getting a job.

    2. The question isn’t so much about firing the person as it is making a target of the person in the first place.

      I’m beginning to think that it’s about time to dox people here, and go after their livelihoods. After we do loki13, do you volunteer to be the next person?

      Of course not! If you volunteered, it wouldn’t be a proper doxxing, now would it?

  10. This is a strange blog entry. It’s not about law, it’s not about libertarianism, it’s just “I think people are too sensitive about race.”

    Uh, OK, duly noted.

    1. Just another day at the Volokh Conspiracy.

      At least this post did not use an egregious racial slur.

      1. Of course not. Only Democrats could do that and get away with it. (Just as it is with blackface, by the way, or did the Governor of Virginia finally resign over that little issue?)

  11. A question for the attorneys – is this legal in every state? I assume it would be legal to fire someone for this reason in an “at will” state, but how about the others? The article doesn’t say where this occurred or where the person worked, but we can assume it was either in or around the Wash DC area, either in DC itself, Maryland, or Virginia.

    1. According to the but if for logic applied to extend sex discrimination to covers LGBT, this is illegal in every state under racial discrimination. She would not have been fired if she had been a black person wearing this costume and this makeup, so it is racial discrimination and illegal to fire her in all 50 states.

    2. Per some of the comments above, it’s not clear that this firing was legal in any state. “At will” employment states still forbid firings on the basis of racial discrimination. (Whether you consider the legal arguments above to be especially strong is a different question.)

      But even in an other-than-at-will state, you can fire employees for cause. And depending on the wording of your corporate policies, this could plausibly count as cause. Or maybe not. Based on the summary above, not only don’t we know the relevant state, we don’t even know the employer (and therefore don’t know the details of their policy).

      1. Most states And D.C. have laws that protect employees from being fired for participating in “any legal activity” when they are not on the job. Last time I checked, wearing blackface is not illegal and this party was not during working hours or at her place of employment.

        1. DC may have such a law (though I can not quickly find it) but it is manifestly untrue that “most states” have such a law that applies to private companies.* Just look at the long history of firing executives, spokespersons and others for their speech, marital infidelity, etc.

          * A number of jurisdictions have laws that prevent government employers for firing their staff on that basis but we don’t yet know that applies to this situation. Unless you have another source that reveals the employer?

          1. I don’t know the technicalities of the laws or which states have them, but many were passed to prevent employers from firing people specifically who engaged in activities they disapproved of. Now of course, an employer could say it was for poor performance, but still I think this woman would have cause to sue. Not so the case of that woman in NYC who told police she was being threatened by that birdwatcher. That is filing a false police report which is illegal

        2. NoVaNick: Not most states — a few states do ban firing for legal off-the-job activities, and a substantial minority forbids firing for speech or political activity, with different states protecting a different range of activity. I laid out the ones as of 2012 in this article; I believe Utah has enacted a recent statute along those lines as well (together with its statutory ban on sexual orientation discrimination in employment). D.C., I believe, only forbids discrimination based on political party affiliation.

          1. D.C., I believe, only forbids discrimination based on political party affiliation.

            Which means that you can’t be fired in D.C. for being a Republican, as long as you’re the right kind of Republican. But if you’re one of those nasty ones who support Donald Trump and questions BLM, then you can and should be fired.

            (I admit it’s sometimes hard to identify a “good” Republican. Mitt Romney is OK now, as was John McCain shortly before he died, because they denounce the Orange Man. But when they were running for president, they were nasty racist crypto-fascists.)

      2. I leave it to the courts to find a way of interpreting “at will” employment out of existence.

    3. Please remember that “at will” employment still must comply with all the various anti-discrimination laws.
      You can’t just say “I fire you, I fire you, I fire you” and be done with it.

    4. I assume it would be legal to fire someone for this reason in an “at will” state, but how about the others?

      What others? Every state, with a partial exception for Montana, is an at will state.

    5. A question for the attorneys – is this legal in every state? I assume it would be legal to fire someone for this reason in an “at will” state, but how about the others?

      I don’t think there are any states other than “at will” states. Sadly, this woman’s termination would have been legal anywhere in the US.

      I get the desire not to involve the government in every termination. But the ability to earn a living is so fundamental to survival in this country that it deserves more protection from retaliation for off-duty personal conduct than it currently receives.

      1. Maybe Congress should pass a law mandating that every person fired based on an anti-discrimination law (federal or state) may appeal their termination to the US Supreme Court and that the court must hear the case. If the court wants to make every termination grounds for a law suit, it should be willing to hear all the cases.

  12. The time is going to come when all those people who committed crimes such a looting and destruction of public property will be identified. I imagine employers will be under a lot of pressure to also fire them. I don’t expect the such moves are going to be met with the applause they are getting now. Probably will hear liberals complain about “freedom of speech” then. But their silence now is going to be noted.

    1. Who cares if their silence is noted? We have the truth and natural law on our side. They have the academy, the judiciary, large corporations, the media, and every other institution that shapes public portrayal of the truth.

      1. ” They have the academy, the judiciary, large corporations, the media, and every other institution that shapes public portrayal of the truth.”

        That was true in the 1960’s as well — until suddenly none of these were respected anymore. The academy is going to implode, I think as soon as this fall — and the rest will follow.

        1. I hope so. The economy is on its way to collapse. I just hope it takes the form of a food and energy shortage.

        2. I doubt academics will implode when China is still willing to pay top dollar (or yuan) to educate its citizens in the STEM fields. My understanding is that STEM provides the majority of money to most public universities while the humanities departments kvetch about non-sense.

    2. Ain’t gonna happen.

      Other than Federal charges, there aren’t going to be any because the Leftist Dems aren’t going to prosecute, and without that the “it wasn’t me” (and inevitable lawsuit) if you tried to fire one of them. Not to mention that *you’d* become subject to looting & destruction, and the cops ain’t gonna help you.

      No, you’ll see such people promoted as a form of protection money payment.

      Here’s the Boston DA on looting:
      https://commonwealthmagazine.org/criminal-justice/rollins-im-heartbroken-furious-and-completely-exhausted/

    3. Destruction or property is not violence. But silence is violence. Maybe we will become so enlightened that rape and murder will no longer be considered violence. But silence is violence.

  13. Roberts has gone full liberal. Read the DACA decision. He’s not even a “moderate” at this point.

    1. I hope he gets COVID.

      1. I hope he gets impeached.

        1. That’s not enough.

          1. You’re right.

            We have to do the research on his children that the NYT did — and publish whatever it was they found out. That will end the left being able to use it to extort him.

            It’ll probably destroy a loving family in the process, but — whatever.

            1. I’m with you on that. I mean, at this rate, it doesn’t matter. By 2028, both Florida and Texas will have flipped permanently blue, cementing permanent Democrat Party control forever. At that point, there is no turning back. Period. Trump was the last stand for conservatives and the white working class. The left’s tentacles in every institution has managed to turn back that last stand.

              We’re toast.

              1. Oh for God’s sake. If you two want to fellate each other; just meet in person and get a room. Don’t worry…this side of the aisle won’t judge you.

            2. What is your interest in Roberts’ children? Are you really that creepy?

        2. I hope he ends up as part of a permanent liberal minority on the court. Let him write all the liberal opinions he wants…but let them all be dicta.

          1. Ain’t gonna happen. Trump won’t be reelected, and once the Dems take power, they’ll ensure they never lose it again.

            1. By hook or by crook they will never lose a presidential election again.

            2. Time will tell, but I’m not entirely sure how the Democrats can get elected after the riots they practically endorsed.

  14. These are very cruel times. It seems each side feeds the other in a sort of frenzy. Yes, the left is worse but both sides are engaged in it.
    It’s this moral cruelty, a desire to exile people from the world, that, at bottom is the great threat to the liberal tradition. It’s not just free speech or due process; it’s the “good faith” that people need to have in order to survive. People make mistakes, do dumb things; but we don’t throw away their entire lives over it. We look at them as “people in full.”
    There’s a saying that there’s a thin crust of civilization that lays over a sort of barbarism. That crust is disappearing fast.

    1. The good thing is we’re heading toward an economic collapse. That’ll get the ball rolling on the civil war and cleansing we so desperately need.

      1. Are you sure you didn’t used to be RestoreWesternHegemony?

        1. Leo, he used ‘rampant members’ in a previous thread…

            1. That’s a WesternHegemony callsign! Add in his identical hatreds and civil war/collapse wishing and I’m 100% sure it’s the same sad dude.

              1. Thanks. So I’m not losing my mind. Well….

  15. So another Girondist goes to the guillotine.

    Good.

    1. The fact that leftists are generally being “cancelled” is the funny part. I’m smart enough to keep my mouth shut in public about politics and I don’t mind burning some incense for BlackLivesMatter in the public temples.

    2. Good point. She was trying to make fun of Kelly and she ends up being hanged by her own petard.

      Yes, it is ridiculous that someone would be fired over this, but there is a strong note of irony in this particular story.

  16. This tree is indeed rotten and dumb. But a lot of people are declaring the forest racist against whites. I disagree. Whites are not being oppressed, guys.

    I still feel pretty lucky to be a hetero white dude in America.

    This is a dumb thing that happened. And blackface hysteria affects has a disparate impact on nonblacks. Indeed, most of anti-racism impacts, both the good and the bad affect whites disproportionately. This does not mean it’s racist against whites.

    There are two ways to see this:
    *This is a change for the worse for white people from the original status quo, and thus whites are being oppressed.

    *This is a change from the status quo where whites could get away with a bunch of racist stuff towards a less racially inequitable status quo. That’s going to be a change for whites, but a net good socially overall.

    This also gets into how much easier it is for the dominant paradigm to be damagingly racist versus a minority. I don’t buy that minorities cannot be racist, but it is more difficult. E.g. whiteface. Or the term ‘cracker.’ Why do you think those are not as offensive as their race-reversed counterparts? Has to do with the power dynamic.

    1. People like you always think the revolution comes for them last.

      1. I’m going to take huge pleasure in watching the non-white pawns of the left turn on the white liberals who think they’re immune from what the disaster that is coming.

      2. …Do you think I’m calling for a revolution? I’m an incrementalist.

        I don’t even like the statues coming down, ffs.

        1. I don’t know why people are jumping on you so hard today. Anyway I like you.

          1. Thanks, man!

            IMO, and I know I’m engaging in speculative telepathy here, it’s a hangover from the opinions earlier in the week. People are angry, and who can blame them.

            Luckily anger like this isn’t sustainable for very long.

            1. I hope not, at least. Dunno if I can stand making fun of the tin-pot revolutionaries that have arrived recently/people are turning into.

              I see enough of that dumb stuff on the socialist forums I lurk on.

      3. Please Bob, tell me one thing Sarcastro said that isn’t true. It’s sad that you and the rest of your tribal warriors are so allergic to nuance that you don’t know reason when you see it. You look at an olive branch and see a gun.

        1. They will come for you too Leo.

          1. I suspect when this all collapses, Jews are going to be targeted, even though only the liberal ones deserve it.

            That’s why I changed my name so many years ago (even though I only have 1/2 Jewish heritage)

            1. “I suspect when this all collapses, Jews are going to be targeted, even though only the liberal ones deserve it.”

              What exactly is “this” which you expect to “all collapse()” at some point. The constitutional republic our Founding Fathers chose for us >220 years ago? Is that what you expect to collapse? How far do you project the collapse you have in mind.? Will fascism succeed it?

              Jews are going to be “targeted” like they were in Nazi Germany and in Charlottesville? Who will be leading/directing the Jews, though in your considered opinion “only the liberal ones deserve it? And what exactly do you think the Jews, deserving and undeserving, have coming to them? Annihilation or something less drastic, perhaps along the lines of some currently oppressed populations around the world?

              Do you think that you share the thinking of BobfromOhio on this? That of “RabbiHarveyWeinstein”?

              1. There’s a few things that will collapse. To start, our deficit spending and reckless monetary policy is not sustainable, and will lead to a financial collapse. When that happens, and people don’t have their basic needs cared for, there will be civil unrest the likes of which America has never seen.

                The American project already is dead. The Constitution means nothing, and leftists have spent the last 55 years replacing the American people. Replacing them with immigrants who care nothing about our history, our culture, or our shared Anglo-Saxon ethos.

                I think when the financial system collapses, Jews will be the obvious target of ordinary Americans who have seen their country destroyed.

                And no, I don’t think I share BobfromOhio’s thinking. My thoughts are mine alone.

    2. “Whites are not being oppressed … I still feel pretty lucky…”

      Arguments of a similar character:

      You’re more likely to get killed in a car accident than a terrorist attack. Why are you making such a fuss about the World Trade Center
      Sure your daughter got killed by illegals. But illegals are actually less likely than … to commit …
      These police killings of blacks are rare. And what about black-on-black crime?

      These attacks against [your people] are rare; look at the big picture is a bad argument. It’s the educated way of saying “I don’t care, your concerns don’t matter, you don’t matter”.

      Nothing is going to get better until we put an end to your concerns don’t matter as the regular answer when someone is attacked.

      1. Ben_ not once did I say not make a fuss about this case. Which all of your arguments assume.

        In fact, I was quite careful to say this was bad and should stop. I lead off with it, and then repeated it.

        So you need to ask yourself why you had to strawman me quite that hard.

        1. I never said you did. Strawman return volley.

          1. All of your ‘arguments of a similar character’ were about dismissing the impacts of a tragedy on an individual because of statistics.

            I did not do that.

            Would you care to clarify the point you were trying to make?

            1. It’s hard to read “Whites are not being oppressed … I still feel pretty lucky…” as not dismissive of a concern.

              1. I am dismissing the collective concern that whites are oppressed in America, not the individual concern that this lady got railroaded and it sucks.

                As I said 2 times in my OP.

                1. We can all dismiss each other’s concerns in America then.

                  That will help, right?

    3. I agree that being a white straight male is still the dominant class in society. As such, the gains from both good and ill intentioned actions in the past do go predominantly to white men today. We still sit in the drivers seat.

      However… history is not a moment but a trend. If someone for the Washington Generals said “WTF? That is cheating! We are getting screwed!” they would be right. To point at the scoreboard in the first few minutes of the game to say “But you are winning! You aren’t the victims!” is naive. Today in the US the trend is that white men must pay for past crimes or at the very least carry the cost of uplifting people of today. White men can still be in the driver’s seat while at the same time others in the car are in the process if violently ripping them out of the car. Those aren’t exclusive states of being because, as I said, history is a trend not an instant.

      It is like being shot. After the trigger is pulled I may proclaim “I’m being shot!” If you were to evaluate my health while the bullet is in the air you would tell me to stop whining and say “White men aren’t facing any real issue… they are still in good health at this moment.” Then the bullet strikes and your declarations did not save me.

    4. I’m not going to believe Democrats take things like blackface and sexual harassment seriously until they go after the highest ups on their own side for it. Why should this obscure 54-year-old be fired over blackface when the Governor of Virginia is still governor? Why should we lose sleep over Kavanaugh’s appointment and the accusations made against him when the ones made against Joe Biden are pretty much just ignored?

      It’s clear that you can be as racist and sexist as you want — if you’re a major player in the Democrat Party.

      Yet we’re supposed to believe that it’s Republicans that are the racist and sexist ones!

    5. I still feel pretty lucky to be a hetero white dude in America.

      You’re a goodthinkful hetero white dude, who can use your white privilege to amplify black voices and further justice. If you were a deplorable hetero white dude, on the other hand, you’d be well advised to keep your head down and your mouth shut at most big corporations and law firms in America today.

    6. “This tree is indeed rotten and dumb. But a lot of people are declaring the forest racist against whites. I disagree. Whites are not being oppressed, guys. I still feel pretty lucky to be a hetero white dude in America.”

      Now that I think about it, why does anyone’s skin color, one way or another, matter in this case? Or in any case?

      The issue isn’t whether whites are being oppressed — they aren’t — the issue is whether a white 54-year-old woman is being oppressed by being targeted by the Washington Post — which is exactly what’s happening. And it would be a very rotten thing to happen, whether the target was white, black, green, or a nice shade of blue with yellow polkadots.

      The smallest minority is the individual. Anything that threatens individual rights, threatens groups and minority rights — for everyone. We would do very well to remember this.

  17. Shrug. I think employees should generally have contracts, and that it shouldn’t be that easy to fire someone. But then I’m not a real libertarian.

    1. It’s never easy to fire someone — or rather, it’s not easy to fire a person who’s doing a good job — because as soon as you fire someone, you have a lot of responsibilities that need to be filled, and a big hole where someone used to fulfill them. And it’s going to take time, money, and resources to fill that hole again.

      There are times when it’s justified to create that hole, and it should be easy for both the employee and the employer to create that hill (unless there are good reasons for it to be hard — but then, that can be written into a contract) — but creating that hole shouldn’t be treated lightly in the best of circumstances.

  18. Well, at least she didn’t say “I can’t breathe “.

  19. Me wonders if she was terminated for an entirely unrelated reason and someone (in maybe H.R.) decided to pin the termination on the black-face thing, because that has the potential to look good in some circles.

  20. At least we don’t have to ask “have you no decency?”. Because the answer to that has been known for a very long time.

    If you were critical of a Trump for saying the news media is “truly the enemy of the people”, you should apologize and acknowledge you were wrong.

    1. I criticized Trump for saying the media is the enemy of the people, and I’ll neither apologize nor acknowledge I was wrong, because I wasn’t. His demonization of the press is despicable, dangerous, and like pretty much everything else he says, deeply dishonest.

      1. Enemies of the people stick together.

        1. Yeah, I’m a one man fifth column. When my Belgian and Canadian allies conquer this country, we’re going to make everybody read the N.Y. Times and watch Sesame Street.

          1. Your insignificance is a comfort to all.

            1. Don’t be so complacent. Who knows the lives I’ll destroy with my support of a free press.

      2. I can’t stand President Trump, but I can’t fault him for saying this, either. The Media hasn’t exactly been making a good case for themselves that they are the friends fo the people.

      3. Yeah. Sure. A judge dismissed Richard Jewell’s suit against the Atlanta Journal Constitution, saying their accusations against him were substantially true (that he was the Centennial Park bomber and as such the equivalent of Wayne Williams mass-murderer). Never mind that Eric Rudolph confessed and was convicted. Yellow Journalism, it sells papers and advocates causes and that is all that counts. All AJC had to do was admit they were wrong and apologize.

  21. Yeah, a lot of bad actors here – starting with the Washington Post.

    Not sure what they’re trying to do but I bet they end up writing some kind of apology/retraction/clarification.

    The company the lady worked for will have some explaining to do too.

    All three ladies involved sure weren’t or aren’t acting like adults either.

    Now please excuse me while I go back through 50+ years of my life to erase, er, review any s̶e̶x̶u̶a̶l̶ ̶h̶a̶r̶a̶s̶s̶m̶e̶n̶t̶ r̶a̶c̶i̶s̶t̶ ̶a̶c̶t̶i̶o̶n̶s̶ dumbassery I may have been involved in.

  22. Getting anywhere close to the boundary line means you get fired upon. It’s not right.

  23. Can she make out a tortious interference with employment claim against the WaPo? Bad venue, of course.

  24. Yesterday some people were wondering how Bostock was going to bite them in the ass. Employers not being able to fire people for wearing blackface might be one way.

    1. Yesterday, and every day on VC, no one wonders if people with no legal experience generally, or no legal experience in a specific field (like employment law) will try to score partisan points by conjuring hypotheticals that they do not understand.

      No one wonders that because the appearance of the stupid arguments is as regular as Dr. Ed making up another story.

      “So, back in ’83, I used to see those black people in New Hampshire in White Face all the time! And you know what they said to me? They said, “Dr. Ed, thank you so much for not being a racist.” And how you like dem apples?

  25. Blackface is nothing but a form of clown makeup. And no person, group, or idea is so sacred that nobody should be making fun of him/it/them.

    Tell the hypersensitive complainers that it’s their problem.

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