Free Speech

May N.Y. Businesses Fire Employees for Using Parler and Gab?

Colleen Oefelein was fired by the Jennifer De Chiara Literary Agency, and the incident illustrates the vagueness of New York law on this point.

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Newsweek (Meghan Roos) reports:

The president of a literary agency [the Jennifer De Chiara Literary Agency] based in New York City said Monday on Twitter that one of the agency's employees was terminated after her use of conservative social media sites Parler and Gab was discovered.

Is that legal?

The First Amendment, by its terms, doesn't apply to private employers. It says "Congress shall …," which has been read as applying to the federal government generally; the Fourteenth Amendment, which starts with "no state," has applied this to state and local governments. But just as private firings based on religion or race don't violate the Free Exercise Clause or the Equal Protection Clause, private firings based on speech don't violate the Free Speech Clause.

But they might violate statutes. Federal law, for instance, generally bans private employers with 15 or more employees from firing people based on race and religion; many state laws do the same even as to smaller employers. And a considerable number of states bans firings based on certain kinds of speech or political activity, though the rules vary from state to state (and sometimes even by city and county), and are often quite vague.

I canvassed these laws in a 2012 article (and Utah has enacted a new law since then), but for now let's turn to the New York law. Let's assume for this that the article is correct in describing Oefelein as an employee; the law may not apply to certain kinds of independent contractors. (Whether New York law applies to an employee who apparently works from Alaska is an interesting question, which I'll set aside for now; it would likely to turn on various details of the employment relationship, including whether the employment contract calls for applying New York law. Alaska has no such employee protection law.)

New York bars employer retaliation for off-duty "recreational activities," including, among other things, "reading and the viewing of television, movies, and similar material."

(2) Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of …

(c) an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property …

{"Recreational activities" shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ….}

(3)(a) [This section shall not be deemed to protect activity that] creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest ….

(4) [A]n employer shall not be in violation of this section where the employer takes action based on the belief … that: … (iii) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.[1]

A separate part of the statute expressly protects a limited range of partisan political activities ("(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group"); the question is whether the "recreational activities" protection covers political commentary on social media that's outside those narrow categories.

The answer is unfortunately unsettled. Court decisions have indeed treated "recreational activities" as including arguing about politics at a social function[2] and participating in a vigil for a man killed because of his homosexuality.[3] Plus if "reading and the viewing of television, movies and similar material" is recreational, why wouldn't writing and posting material on a social media platform be recreational too?

But one court has held that picketing is not sufficiently "recreational" to qualify.[4] Other New York courts have likewise held that certain non-speech activities—dating[5] and organizing and participating in "after-work celebrations with fellow employees"[6]—that might normally be seen as recreational nonetheless are not covered by the statute. This suggests that "recreational activities" might likewise be read narrowly in some speech cases.

It's also not clear how the "without use of the employer's equipment or other property" exception would play out here. There would be a factual question: Did the employee, for instance, use a company-issued phone or computer? And there may be a legal question: How should company-issued devices that are expected to be used at home for personal purposes alongside business purposes be treated for purposes of the law? I know of no cases exploring that.

What about the exception for activity that "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest"—could an employer argue that it allows firing for any activity that might harm the employer's business by offending some customers or business partners?

One case read the exception as allowing the German National Tourist Office to fire an employee for becoming known as the translator of some Holocaust revisionist articles.[7] Presumably the court's view was that the activity could lead to public hostility to the office, and that this hostility created a "conflict of interest" between the employee and the employer's "business interest." If that's so, it could apply to any speech or other recreational conduct that's sufficiently unpopular. But other cases interpreting similar statutes in other states, however, consider some speech to be protected even when it does undermine the employer's business, for instance by offending customers.

Again, keep in mind that this is the New York statute; if a similar matter comes up in another state, you'd need to consult the statute in that state (or, in some instances, city or county). And note that none of this speaks to whether these laws are good ideas. Perhaps employers should be free to fire employees based on their speech or political activity or recreational activity (or their religion or sexual preference or race or what have you); or perhaps speech should be treated more like, for instance, religion, as a basis on which the employer may not fire an employee (even if the religion is quite unpopular); here, I just talk about what the law is.

[1] N.Y. Lab. Law § 201-d (McKinney 2011) (enacted 1992).

[2] Cavanaugh v. Doherty, 243 A.D.2d 92, 100 (N.Y. App. Div. 1998) (treating an allegation that plaintiff was fired "as a result of a discussion during recreational activities outside of the workplace in which her political affiliations became an issue" as covered by the statute).

[3] El-Amine v. Avon Prods., Inc., 293 A.D.2d 283 (N.Y. App. Div. 2002) (affirming denial of summary judgment in a § 201-d(2) case apparently brought based on plaintiff's "involvement in a vigil for Matthew Shepard, the gay college student who was brutally murdered in Laramie, Wyoming," Jennifer Gonnerman, Avon Firing, Village Voice, Mar. 2, 1999).

[4] Kolb v. Camilleri, No. 02-CV-0117A(Sr), 2008 WL 3049855, at *13 (W.D.N.Y. Aug. 1, 2008) ("Plaintiff did not engage in picketing for his leisure, but as a form of protest. While the Court has found such protest worthy of constitutional protection, it should not engender simultaneous protection as a recreational activity akin to 'sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.'").

[5] E.g., Hudson v. Goldman Sachs & Co., 283 A.D.2d 246 (N.Y. App. Div. 2001) ("romantic relationships are not protected 'recreational activities'"); State v. Wal-Mart Stores, Inc., 207 A.D.2d 150 (N.Y. App. Div. 1995) ("dating is entirely distinct from … recreational activity") (internal quotation marks omitted). But see id. at 153 (Yesawich, J., dissenting) (arguing that dating should be seen as covered).

[6] Delran v. Prada USA Corp., No. 101691/04, 2004 WL 5488006 (N.Y. Sup. Ct. Aug. 2, 2004).

[7] Berg v. German Nat'l Tourist Office, 248 A.D.2d 297 (N.Y. App. Div. 1998); Paul Schwartzman, It Just Isn't Write[;] German Axed Over Hate Mag Article, Daily News (N.Y.), May 11, 1995, at 6.

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  1. Is it true that I recreationally post on the Volokh Conspiracy? Depends on your definition of the word “is”.

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  2. “Are you now, or have ever been, a person who uses unapproved social media platforms?”

    Do these people not realize how creepy this is, apart from the legalities?

    1. I regularly browse /biz/ and identify as a /biz/raeli citizen. Buy GME! #YOLO

    2. “Do these people not realize how creepy this is, apart from the legalities?”

      No.

      1. Should you friend your future boss on Facebook before or after the phone interview?

        1. Neither. Your boss is NOT your friend. Your boss isn’t your enemy either.

        2. Neither, unless you have a pre-existing social relationship your future boss.

          1. Future ex-boss, probably.

            1. I get paid 95 $ each hour for work at home on my PC. I never thought I’d have the option to do it however DTD my old buddy is gaining 65k$/month to month by carrying out this responsibility and she gave me how.

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    3. The real question is, do they care? As long as it works, probably not.

    4. Bored Lawyer, take your point one step further and ask if Parlar and Gab may have a defamation claim against the Jennifer De Chiara Literary Agency.

      How is this not defamation? They’ve told Newsweek that use of their (legal) product, on her own time, was the reason they fired her. That’s not defamatory toward the product?

      How is this different from the suits Monsanto threatened to bring against dairies that pledged not to have rGBH milk — and read the fine print on your milk carton about how rGBH milk is a good thing.

      1. This is really special.

        1. We need to have like a HOF for Dr. Ed 2 posts. This would be top 10.

          1. Nah. Not even top 100.

            It’s probably not defamatory though.

        2. Please note they did not say all social media, and announced the firing on Twatter. So they are saying they fired her for using two specific brands of a product. That’s not defaming those brands?

          1. No because Literary Agencies are sovereign citizens under the 1A and Section 230. They are immune from defamation unless you prove that they violated RICO.

            1. You’re going to have to explain that a bit further for me.

              If a literary agency post something that’s incontroversially defamatory… Let’s say “Mother Teresa is a child molester, they have proof of it, and that she’s the real life mother of Oprah” And they stick with it, no parody etc….

              Why exactly wouldn’t they guilty of Defamation?

              1. This is what they wrote:

                “”The Jennifer De Chiara Literary Agency was distressed to discover this morning, January 25th, that one of our agents has been using the social media platforms Gab and Parler. We do not condone this activity, and we apologize to anyone who has been affected or offended by this,” De Chiara wrote. “The Jennifer De Chiara Literary Agency has in the past and will continue to ensure a voice of unity, equality, and one that is on the side of social justice.”

                I’m not saying one would win, but couldn’t one make a defamation argument out of that? A=B, B=C, and hence A=C.

                1. Sorry, not defamatory.

                  1. One of our employees is using the platform. Simple truth
                  2. We don’t like it. Statement of opinion.
                  3. These are our values. Statement about organization, not platform.

                  There’s zero to make a defamation argument about there. They’ve made no factual claims about Parler or Gab.

                  1. I don’t know if it meets the standard for defamation, but aren’t they implicitly saying that Gab and Parler do not ensure a voice of unity, equality, or social justice? I would think the debate is centered on whether or not the Agency’s claim is a matter of fact or opinion. By saying that they will “ensure” such values, I would argue it goes beyond a mere opinion that Gab or Parler do not ensure those values. They’re absolutely convinced they don’t ensure those values and they responded by firing the employee. Has the definition of what constitutes an opinion ever been argued before? I’d say that taking action on it makes it a lot more than just a harmless thought and real harm resulted from this.

                    1. “Has the definition of what constitutes an opinion ever been argued before?”

                      Yes.

                    2. Yes.

                      Don’t be silly. Awildseaking is the first person who ever thought of this legal question.

                    3. I suspect it came off the wrong way based on your response. I don’t personally know of when the definition of an opinion was argued and I was asking if someone could cite examples of it so I could learn more.

              2. It’s complicated. The Income Tax Amendment was never properly ratified, and the current government is illegitimate anyway because the military did not use the mandatory cadence in their salute at inauguration. All citizens are sovereign in the meantime, and defamation cases cannot proceed. I’ll try and get to the bottom of it today but in the meantime you’ll just have to take my word for it.

                1. My StereoHopic IPA says differently, but just because I can’t tell if it’s number 2 or number 3 means I couldn’t possibly take your word for it, unless you would willing to spot me a round.

                2. Needs more random and confusing of brackets, capitalization, and assertions about having a true name in government archives.

              3. Mother Teresa is dead.

            2. No because Literary Agencies are sovereign citizens under the 1A and Section 230. They are immune from defamation unless you prove that they violated RICO.

              That’s not what HIPPA says.

              1. HIPAA says that FERPA applies. 🙂

              2. You can’t quote the law to me, I’ve seen every episode of night court.

          2. Please note they did not say all social media, and announced the firing on Twatter. So they are saying they fired her for using two specific brands of a product. That’s not defaming those brands?

            No. This has been yet another episode of Simple Answers to Stupid Questions.

            1. She’s claiming it was because she was “Conservative and Christian” and the latter is absolutely protected.

              1. Whether she was fired illegally (protected class or actions) and whether the company defamed Parler are two completely different questions.

                There’s no defamation case. There may be a case for firing the employee illegally.

      2. Truth is a complete defensevto libel. If they in fact fired her because of her use of these platforms, they told the truth. How could a plaintiff prove she was in fact fired for a different reason?

  3. Also, as much as I hate atheists for being obnoxious sniffers if their own flatus, they do have a point about religiously held beliefs being held in higher esteem by the government than personal moral or philosophical beliefs.

    1. My favorite example of this came during the Monica Lewinsky scandal. It was perfectly obvious to anyone with a sentient brain that the Clintons needed some marriage counseling. And they got it- but they made sure to trumpet that it wasn’t really marriage counseling- they went for “spiritual counseling” from a “religious” advisor who just happened to specialize in helping couples.

      They thought- correctly, I think- that the notion of the President seeing a psychiatrist or psychologist would be absolutely mocked by the press and the public, and the only politically palatable way to get counseling was to cloak it in religious guidance, because even if they were getting the exact same advice and help, that would be seen in a different light.

      1. I’ve read some “come to liberal Jesus” articles recently about the benefits of Joe Biden’s Catholic faith. Of course, that “faith” conforms perfectly with modern values regarding marriage, family planning, and sexual arrangements. The articles remind me of the media’s dichotomous coverage of the Catholic Church between the reigns of Pope Benedict XVI? (the evil “Nazi”) and Pope Francis (the SJW who loves Jeebus). I guess the Church has finally come around to the correct TRUTH that is being disseminated by the cultural elites in America.

        1. Pope Francis may be meeting “Jeebus” sooner than you think — and then it will be interesting because he’s packed the College of Cardinals with leftists.

          1. Hey post-Vatican II, why not choose an easy religion since they all get you to the same place?

  4. Look, we learned from earlier debates that this whole issue was settled in 1964…no employer shall discriminate on any grounds, certainly not on such an irrelevant issue as recreational activities…what’s next, firing gay employees for *their* recreational activities? Bring on the lawsuits!

    /sarc

    1. Having unprotected anal sex with 20 men at the local gay bathhouse is an immutable characteristic, you troglodyte cretin!

    2. The federal Civil Rights Act permits private employers to fire people on a wide variety of grounds, including watching Judy Garland movies.

      1. What if their policy is “you can watch John Wayne movies but not Judy Garland movies?”

        1. That policy does not violate federal law.

          1. “Forever Amber but not Brokeback Mountain”?

    3. Remember that at-will employees can fire an employee for any reason except an illegal reason. New York does not allow any exception to at-will status.

  5. I find it stunning, and scary, what’s going on with “cancel culture” and social media. Something so Orwellian, so Nazi-like about it.

    1. I’m seeing a lot of references to the Shoah on the Internet today. We can’t let the goyim forget that the Shoah is the worst crime in human history and more significant that the Holodomor, the Great Leap Forward, or Year Zero in Cambodia. Never forget! The Nazis killed 6 million Jews and a few other goys and American Whites who voted Republican are ideologically no different than the Nazis!

      1. “American Whites who voted Republican are ideologically no different than the Nazis!”

        That’s horseshit and you know it! If it wasn’t for American Whites who voted Republican back then, the Shoah wouldn’t have been stopped!

      2. You need to up your numbers Rabbi. Those are rookie numbers. I’m seeing now people saying the holocaust was like 15-20 million now.

        https://www.telegraph.co.uk/news/worldnews/europe/germany/9906771/Nazis-may-have-killed-up-to-20m-claims-shocking-new-Holocaust-study.html

        1. Yes, I mentioned that a few other goys died but the most significant deaths were the Jewish victims. We can’t let the mentally disabled, the Catholic Poles, or those vile Russians take the spotlight away from the suffering of the Jewish people at the hands of Aryan monsters.

          1. Don’t forget the Roma, Rabbi. I’ve seen plenty of “the Roma were holocausted too” these days.

            1. Don’t forget the Roma, Rabbi. I’ve seen plenty of “the Roma were holocausted too” these days.

              Well, they were. Though I’ve never seen any actual numbers on that.

        2. I’m seeing now people saying the holocaust was like 15-20 million now.

          That’s 15-20 million killed or imprisoned. That doesn’t surprise me, but it doesn’t change the 6 million number, which was always the number killed.

        3. What I also found out while looking for this, is that the oft-quoted number of 5 million non-Jews killed in the Holocaust was deliberately made up by Simon Weisenthal, on no basis whatsoever, just because it sounded good. According to Yehuda Bauer, Weisenthal admitted to him that it was a lie.

  6. Justice Gorsuch just ruled that the use of social media comes under the Civil Rights Act’s protection of religion.

    /sarc in case it’s necessary to specify this

    1. And on the Sixth day, God made the forums and the imageboards and they were good.

      1. “This is a great world. All Man has to do is not mess it up. #Creation.”

  7. Dear Jennifer de Chiara Literary Agency,

    I am writing a book tentatively entitled Liberals Are Wusses. Can you help me find a publisher?

    Sincerely, etc.

  8. What a mess of a law.

    This is why the default in every state should be at-will.

    You don’t like working for your employer? Fine. Leave. Get a new job.

    You don’t like your employee? Fine. Terminate them.

    Any exceptions to this should be narrow and reflect the usual statutory issues (e.g., Title VII). Even those will hopefully disappear. Maybe someday.

    If you want something different, sign an employment contract. Or get a union.

    1. Any protected categories?

      Race is of course a given.

      But how about age? “Family status”? Pregnancy or lack thereof? Sexual orientation/gender identity?

      1. Title VII:
        Race, Color, Religion, Sex, National Origin
        (Sex now includes sexual orientation, Pregnancy/Childbirth is included)

        ADEA:
        Age Discrimination

        ADA:
        Disability

        1. Excellent, but why some categories rather than others?

          You can’t get fired for your sexual activity off duty,* why should you get fired for posting on Gab while off duty?

          *with consenting adult humans, without commercial consideration

          1. So, a few notes before answering your question. IMO, the baseline, the default, the desired condition should always be “at-will.” At-will means that you can be terminated for any reason- a good one, a bad, or no reason at all. The flip side is that you, the employee, can leave any time. This is good, because people want to get better jobs, and it also incentivizes employers to keep good employees (there are transaction costs to both sides when an employee leaves/fired). It’s usually win-win. If either side desires more security, you need to bargain for it (through an employment contract or a union). That’s what I think things should be, and some states are close to that platonic ideal.

            Now, let’s answer your question, assuming an at-will state. First, your premise is wrong. You can get fired for any reason, or no reason. You could get fired because your employer thinks you were having sex with Bob, or Brenda, or weren’t having sex with them, let along posting on GiHub.

            BUT … pursuant to Bostock, the employer would be in violation of federal law (and state law, assuming it is read in conjunction with federal law) if they fired you because you were gay. To put this in slightly more clear terms:
            Alice likes to go to sex parties and post pictures on the internet.
            Bob likes to go to sex parties and post picture on the internet.

            If Employer fires both Alice and Bob, then it doesn’t matter if Bob is gay. It’s not the “but-for.”

            As to why the protected categories? Because those are traditional grounds for discrimination in employment (and other areas) that the government was trying to remedy- to remove, “root & branch”. Most of them involve some type of immutable characteristic.

            In an ideal world, I’d like to see those fall away- a lot of workplace litigation ends up going into issues of whether the employee was terminated because of a characteristic, or because they were a cruddy employee.

            Unfortunately, I think that there is a still a surprising amount of workplace discrimination in some of those categories.

            1. OK, you got me, an employer can have a “neutral” rule against all kinds of sexual behavior – just ban it for gays, straights, trans and cisses alike and the employer will be all right unless of course they’re accused of applying their written policy unevenly, but never mind that part.

              Of course, religion isn’t an immutable characteristic. But, say, height is.

              1. “OK, you got me, an employer can have a “neutral” rule against all kinds of sexual behavior – just ban it for gays, straights, trans and cisses alike and the employer will be all right unless of course they’re accused of applying their written policy unevenly, but never mind that part.”

                It’s not even that. More specifically:
                Employer hates Chris.
                Alice has sex with Chris.
                Bob has sex with Chris.

                Employer fires both of them. It has nothing to do with a “neutral policy,” it’s just that the employer hates Chris. So long as the reason that Employer fired Bob wasn’t because Bob was gay, then it’s fine.

                …the issue is usually one of evidentiary proof. That’s why larger companies have written policies. They don’t want to say that they fired you for a bad reason, or no reason, because then it becomes a disputed issue which will cost money to litigate.
                “We fired you because you had sex with Chris, and we hate Chris.”
                “No, you fired me because I was gay.”
                “Did not.”
                “Did too.”
                etc.

                Instead, it’s because you were a “no call no show.” Or some other neutral reason. Like writing, “We hate Chris” in the employee handbook (along with a strong arbitration clause and waiver of jury trial).

          2. The short version of loki’s response: the government can view discrimination on the basis of “X” as being more pernicious than discrimination on the basis of “Y,” and ban the former while permitting the latter.

            1. I was wondering about the rationale for the existing distinctions.

              1. The likely rationale is a subjective combination of current and historical prevalence of discrimination, and immutability (religion is mutable, but there is a history of discrimination; height is immutable but doesn’t appear to be a current or historical problem).

                1. No fair bringing common sense into it.

                  1. To be fair, I think there’s at least some evidence of tall people having a leg up (so to speak).

                    But in any case, I was replying to a comment about immutable characteristics.

                2. You’re right that no one considers discrimination based on height a a problem. This is not because it doesn’t exist though.
                  Height is in fact a common discriminatory metric. It likely won’t keep you from a job, but you will be payed differently.

                  1. In the 60s and maybe on into the seventies, don’t know, some employers had discriminatory height requirements. My sister tried to get a summer job with Kimberly Clark and there was an issue because she was not quite 5’6″ and the job she was applying for had a 5’6″ or greater requirement. Probably the requirement was in place to discriminate against women. She did get the job, but I don’t recall how it all transpired.

                    In other areas of employment, police hiring, for example, height requirements were commonly used to eliminate women applicants.

            2. Even shorter version: rules for thee, but not for me.

              Event shorter still: special pleading.

              1. The rules apply to everyone equally.

          3. BECAUSE OLD PEOPLE VOTE.

        2. The really bright overhead light in the big room with the blue ceiling bothers my eyes. Does this qualify as a disability under the ADA?

          1. I am quite sure that there are people in real life who will be happy to provide individualize advice for a small fee. 🙂

            1. But I have to go through the big room with the blue ceiling to get to those people.

              1. If there’s one thing the last ten months have taught us, it’s that you don’t need to go outside to do basically anything.

              2. Do a Lexis search on Agoraphobia and discrimination… 🙁

          2. Yes. For example you can get an exemption from the ban on tinted window glass. See: https://www.mass.gov/how-to/apply-for-a-tinted-glass-waiver-for-your-vehicle

        3. “Title VII:
          Race, Color, Religion, Sex, National Origin”

          I, too, think that we should have employment at will, except for the exceptions I think we should have.

          1. Hey, it’s misogynist infantile nom de plume guy!

            As always, your contributions are so invaluable that no one needs to respond.

        4. If we’re going to slowly get rid of those, let’s start with the ADA. The others you identify are narrow and pretty well-defined. The ADA is insanely unbounded — and rather than simply being a non-discrimination statute, requires extensive accommodations.

    2. In NY there are no exceptions to at-will status at least with respect to non-government status. Represent ed worked may have more protection if that is part of the employment contract.

      1. I should have phrased that more carefully.

        Why bother having a default of at-will, if you are going to carve it up with statutory causes of action for, inter alia, termination for recreational activities?

        1. Absolutely. That makes no sense.

    3. I’m trying to reconcile your desiring of at-will employment with also desiring large numbers of broad exceptions (and as others have noticed, what makes those categories special).

      1. The reason you have difficulty reconciling it, is because you aren’t reading what I wrote.

        “Any exceptions to this should be narrow and reflect the usual statutory issues (e.g., Title VII). Even those will hopefully disappear. Maybe someday.”

        I don’t want the exceptions. But I’d keep the exceptions to the narrow federal ones, and work to eliminate those.

        1. You really don’t want those exceptions?

          1. No. I don’t. I could go into a very long explanation as to why. But I try to caveat it with the whole “ideal world.”

            The following things are true, in my experience:

            1. “Traditional” discrimination (discrimination on the basis of race/color, gender/pregnancy, age, or sexual orientation) is still far, far, far more prevalent than most people think it is.

            2. The law (Title VII, ADA) is a blunt instrument to deal with those problems, for the most part. I have seen examples where it has been useful in certain situations where the issues were systemic (to a corporation, to a fire department), but those tend to be brought by the government.

            3. Unfortunately, many good people suffer from discrimination with no recourse from the law. While there are … people who have abused the law despite not suffering from discrimination. Squeaky wheels and all that.

            I don’t have particularly good answers to this. But no, I would prefer that those exceptions were not there, and would like to eliminate them.

            1. Let me reword slightly.

              1. You don’t want those exceptions and and if people were fired for
              their race, then that’s what happens.

              OR

              2. You wish we lived in an ideal world, and didn’t need those exceptions because people wouldn’t be fired due to their race.

              Just clarifying which is your actual position

              1. I stated my actual position. Like, with lots of words!

                1. You did, but you weren’t entirely clear with all the caveats.

                  So…. Is your position closer to 1. Or 2. ?

                  It sounds like you mean 1. But, again, I’m asking.

                  1. The lack of clarity is because it’s complicated, and no reducible to either position. More of a hybrid.

                    My position is really (1). I think that people should enter and leave work arrangements (at-will) whenever they want, and to the extent they don’t, they need to form a union (collectively bargain) or get an employment contract (privately bargain). I think that the majority of the time, trying to tease out the cause of termination is a fool’s game for both sides, and adds unnecessary transaction costs- the only people that truly profit, in the long run, are the attorneys.

                    But I have also seen enough actual, bona fide, “classic” discrimination to know that the laws still have some beneficial effect. So my nuanced answer is to do everything possible to reform the laws and reduce the number of protected categories until there are 0.

                    Or maybe just reserve them for institutional issues. I am conflicted.

                    1. Well, your conflicted response explains why it was confusing for sure.

                    2. He rejected your false choice, is more what I see.

        2. “I don’t want the exceptions. But I’d keep the exceptions to the narrow federal ones, and work to eliminate those.”

          Nice way to try to say too things at once.

          1. Oh wow! Stupid name person manages to make the same dumb comment twice!

            It’s like the troll that follows you, and contributes nothing.

            Herpes, really.

    4. The problem, loki13, is the increasing lack of privacy.

      You really shouldn’t be able to know what your employees do on their own time — and until recently, you couldn’t. You didn’t know that someone subscribed to Mother Jones, etc.

      1. So?

        Seriously. If people in the United States want more job protection, then let’s do that. Make it like Europe and have jobs for life.

        Otherwise-
        Get a union.
        Get an employment contract.

        But stop with the constant whining about why an employer fired you. It almost seems like there are people that can’t seem to understand that losing your job for arbitrary reasons can suck, until it happened to them.

        Seriously, all the whinging I used to hear about the race or gender discrimination laws (calling it special pleading, etc.) seems to have disappeared, replaced by “How dare someone get fired? Someone … like me???”

        At will. You can leave. Your employer can fire you. That’s what we should have.

        PS- You should probably get fired for reading Mother Jones, just on principle.

        1. Well, we should have employment at will, full stop. But lawmakers like to carve out exceptions for specific things that they don’t think people should get fired for. They’re wrong, but there you have it.

          1. If you want a substantive conversation, try replying to someone who doesn’t think you’re a lying misogynist and wouldn’t have an actual conversation with you if you were the only other person on VC.

            KTHXBYE!

  9. Licensing boards in Democrat states have been harassing and suspending conservatives. They are state actors subject to the Free Speech Clause via the Fourteenth Amendment.

    1. Hey bigot! If you don’t like it, why don’t you make your own licensing board? And if the state mandates a monopoly, why don’t you make your own state? And if… And now you’ve been charged with conspiracy to commit sedition.

    2. Care to provide any links?

      1. Links imply chains.
        Chains are slavery.
        You are a slaver.

  10. Boy, the lebensraum (sorry, don’t know how to italicize), keeps getting smaller and smaller for you guys.

    And the funny thing is you can’t simply shoot your way out of the pathetic corners you’re backing yourselves into.

    Is Argentina still a thing for you guys?

    1. Wait, did you just compare a literary agent, who represents romance authors, to a National Socialist?

    2. What? The US recognized Jerusalem as the capital of Israel and I’d like to see those sand people fight against a nuclear warhead if they try to take the West Bank away from us!

    3. Comparing all your opponents to Nazis and denying them all civil society outlets certainly has no downside. Carry on.

      1. I found another Nazi on the board!
        Reported for hateful language!

    4. Wow, Godwin’s Law is proven again.

    5. Less than sign
      i
      Greater than sign
      text you want in italics
      Less than sign
      Forward slash
      i
      Greater than sign

  11. Hypothetical:

    You are the CEO of Abolish Abomination, a non-profit organization devoted to the elimination of the bigotry, hate, and special pleading occasioned by the coerced acceptance, approval, and cheerleading of such odious propositions as NAMBLA and transgenderism.

    You learn that your handsome general counsel has been romantically involved with the venal Rachel Levine. You are dumbfounded; indeed, you are shocked. Just days after you learn of your general counsel’s sordid affair with Levine, the latter is brutally stabbed and murdered by an undercover FBI agent posing as a white supremacist agitator adorned with a MAGA cap.

    Your general counsel telephones you and discloses his romance with Levine. He tells you he wants to attend a memorial service for Levine and then go public with his love for him.

    What do you do?

    1. Fire Levine. Claim “hate crimes” have risen 69% under the Trump presidency and then give myself a raise for a total compensation equal to $400k USD.

    2. Is Rachel a man or woman? Or does that question brand me as a backward bigot?

      1. Only those who disparage others for recognizing that Ms. Rachel is an abomination to humanity are bigots.

    3. Is the handsome general counsel blind?

      1. If he were, one would view the hypothetical in a different light, wouldn’t one?

    4. “You learn that your handsome general counsel has been romantically involved with the venal Rachel Levine. ”

      In exactly what way is Levine venal? I understand that you are attempting to attach an insulting label to this person, but I have no clue what “venal” is intended to mean in this context. You could have confused me more had you called her craven.

  12. Maybe the solution is to do away with the concept of protected classes altogether and simply enact a civil rights law that forbids employers to discriminate based on anything that isn’t job related. That’s the law in Great Britain and from what reading I’ve done, it generally seems to work well for them.

    1. But how would we fight white supremacy if white people have the same rights as oppressed, Black folx?

      1. White people do have the same rights black people do; there’s a Supreme Court case directly on point. In the early days of Title VII, a white employee sued claiming he had been discriminated against by his black supervisor. One of the company’s defenses was that civil rights laws only protected minorities. They lost. The Supreme Court held (unanimously, if memory serves) that laws against racial discrimination protect all races, whites included. So please take that enormous chip off your shoulder and light a campfire with it.

        1. “White people do have the same rights black people do”

          Kinda but not really.

          When there are government programs specifically designed to funnel government funds to black people, but not white people, it’s hard to argue that Whites have 100% the same rights

          1. Decisions about resource allocation will always involve a certain amount of “this project needs the money more than this other project does”; that’s the nature of resource allocation. But I don’t see what that has to do with workplace discrimination, which is what we’re talking about.

            1. It’s not project, but programs designed specifically to say “These people are black so we’re going to specifically get them money that other racial groups can’t have”

              Mostly small business minority owned, such as the 8(a) program.

              1. Minority businesses don’t “get” money in the sense of getting it for free; they have to do the work that they contracted to do. But let’s make this simple:

                Suppose a father has twin boys, one of which he likes better than the other, so for five years, from age five to ten, the favored one gets twice as large an allowance as the disfavored one. He then develops a conscience, decides what he had been doing was wrong, so for the next five years he makes it up to the formerly disfavored one by giving him double allowance.

                Now, there are two ways of looking at it. One is that he’s now practicing reverse favoritism, and is behaving just as badly as he did before, just to a different son. The other is that the formerly disfavored son is entitled to compensation for all the years that he was disfavored.

                You’re in the position of the formerly favored son. Your basic argument is that now that you’ve already enjoyed all those years of a double allowance, you think it’s just peachy to simply stop and do everything equal from now on. Of course, if you had been suffering under a half allowance for all those years, you might have a different perspective. Then, you would see it as unjust that money you had been deprived of all those years, you still aren’t getting. But my view is that the guy who benefitted from the initial favoristism should be a dear and not complain when the old man tries to make up for the injustices of the past.

                Now, my analogy is not perfect; there are differences between it and affirmative action. But on the central point — the people who benefitted from the previous favoritism aren’t really sympathetic plaintiffs, and absolutely should have better sense than to now complain about favoritism just because it’s now going the other direction — is spot on.

                1. “Minority businesses don’t “get” money in the sense of getting it for free”

                  If the low bid among all firms is $100, and the contract goes to a minority firm for $105, wouldn’t you say the minority firm got $5?

                  And as an aside, there is this:

                  “…in Illinois you get favorable treatment as a potential government contractor if you “comply” with all sorts of insane progressive policy strictures. “Woman or minority owned business” or “small business owner”, as an example. Even a small advantage in the contracting process for (for example) the State of Illinois puts you over the edge. Competitors without (for instance) the Woman or Minority Owned Business certification would have to underbid a certified applicant by 10-15% (it’s all a complex points system) to just break even. It got so bad so quickly that the regs were revised to permit a de minimis ownership (1%). Of course, several regulatory lawyers quickly made a business out of offering minority or women equity “owners” who would take 1% for a fee (just absorb how backwards it is to be paying a fee to have a 1% equity partner) with very restrictive shareholder agreements. Then it became obvious that you’d get points for the “women” and “minority” categories BOTH if you had a black woman as a proxy 1% “owner.” There was one woman who was a 1% owner of 320 firms.”

                  It does seem the lady in question is getting something for nothing.

                  1. I would say that the fact that some people have figured out how to game the system means those loopholes should be closed, and not that the underlying idea isn’t a good one.

                2. 1. That’s not exactly simple.

                  2. The 8(a) Minority business set aside has been going on since 1978. More than 40 years.

                  3. What that means is that REALLY the best example is this. The first born son is all grown up now, and giving HIS sons an allowance. And he decides to give his second son double the allowance. The first son says “That’s not fair!” But the father says “well, in my generation, the first-born son got double the allowance, so to make it “fair” now the second born son will get double the allowance. And the first born son says “I never actually got a double allowance, I’ve been discriminated against my entire life because of something that happened long before I was born!”

                  So the people who originally “benefited from favoritism” are long gone….

                  1. The practical reality is that the sins of the fathers are visited upon the children, often for generations to come. A lot of German taxpayers who did not vote for Hitler (including some who weren’t even alive when Hitler was in power) nevertheless ended up paying for war reparations. For that matter, a significant part of the reason we have racial issues is because of the sins of the original slave traders who brought blacks over from Africa centuries ago. The idea that you don’t suffer for the sins of other people, often long dead, is just totally divorced from reality. And, I haven’t noticed much complaining about those occasions in which you benefit from actions taken by people long dead.

                    For better or worse, humans live in community, and the community frequently gets stuck with the tab when someone misbehaves. That’s life.

                    1. 1. “the sins of the fathers are visited upon the children”
                      Oh good….I thought we did away we such concepts, but always interesting to see liberals bring back such interesting concepts.

                      2. Hitler
                      Godwin’s law

                      3. nevertheless ended up paying for war reparations.
                      Really, these were basically done in 1960, not more than 40 years afterwards

                      4. sins of the original slave traders who brought blacks over from Africa centuries ago.
                      Now we’re up to HUNDREDS of years? Wow.

                    2. 1. That’s a statement of how things are, not how liberals would make them if we could change reality. Reality is that what your ancestors did impacts you, for good or for evil. You’re not free-floating; you’re the product of those who came before.

                      2. Ok, so we’ve established that you don’t understand Godwins Law; you might want to look it up. Merely mentioning Hitler isn’t it.

                      3. My memory is that German war reparations weren’t paid off until the 1990s, but regardless, the point is that people are sometimes stuck paying for things they had nothing to do with.

                      4. Well, I’m still benefiting from the work of Aristotle, who died millennia ago. Like I said, for good or ill, we benefit or suffer as the result of those who came before.

                    3. The short answer is that Krychek doesn’t care who gets screwed as long as it serves his agenda.

                      By his thinking “some people get a shitty deal, live with it” could just as well apply to doing nothing at all

        2. Oh, sweet — an academic theory based on a half-century-old court decision! I for one am no longer concerned one whit about the recent and appropriately Orwellian “racial equity” initiative.

    2. True enough, the alternative is that employees have a property right to their job and they cannot be fired saved for criminal action or for just cause that directly job related.There are pros and cons to this as well as to other models of employment.

      That you can be fired does NOT mean that you cannot sue the employer for a tort. It does not mean that the employer did not create a hostile work environment; it does not mean that you cannot receive unemployment insurance payments which are counted against the employer raising her rates.

      Fact is that even in at-will states not that many people are fired except for bona fide direct business reasons

    3. Maybe the solution is to do away with the concept of protected classes altogether and simply enact a civil rights law that forbids employers to discriminate based on anything that isn’t job related.

      Or maybe the government shouldn’t interfere with a private employer’s employment decisions. Crazy idea, right?

  13. I’m amazed how little challenge there’s been to the “Parler is alt-right” narrative. I joined it last fall after reading about it here. I followed a few interesting feeds and then didn’t do much with it.

    When I heard that it was going to be shut down, I logged in and the first item in my feed was a Volokh Conspiracy article called “The Case for a Swift Impeachment”. Yes, that’s clearly an alt-right and white-supremacist viewpoint.

    1. Nice alt-right talking point.
      Go gaslight back on Reddit.

    2. I’m amazed how little challenge there’s been to the “Parler is alt-right” narrative.

      Whaddaya gonna do — pull up the site and point to counterexamples?

    3. Ha ha great post. Maybe the Professor needs fired? Just kidding.

      It does point how absurd tyhsi is. Good article but I’ll state it over thinks it.

      Just change Parler to Twitter and liberal employer to conservative employer and all of the cool kids including the justice department will be all over it.

    4. There’s an endless series of fairy tales on the left. Debunk one, they make up another one. And then the next day they “forget” that the first one was debunked and go back to repeating the first one too.

      They don’t care that they are dishonest so any “challenge” does not matter.

  14. we dont fight white supremacy by attacking the first amendment. didnt you learn Voltaire in college?

    1. Voltaire is a dead cis white straight male. He has nothing to teach us today.

  15. Only out of touches judges can be so all over the map on what’s “recreational”

  16. Why not? The feds just arrested a person for posting memes. Before long, being registered as a Republican will be sufficient cause to be fired from your job, DFACS called to take your children, and you jailed indefinitely.

    https://www.justice.gov/opa/pr/social-media-influencer-charged-election-interference-stemming-voter-disinformation-campaign

    1. IMHO, they charged him with the wrong thing — wouldn’t that be a legitimate case of wire fraud?

      1. Anyone stupid enough to believe a meme that informed them to vote by text should be jailed for their own safety.

        1. How about people who believe the Q bullshit. Or the bullshit promulgated by the Kraken heads?

    2. “The feds just arrested a person for posting memes. ”

      This is a classic example of lying by omission. The article makes plain that the “memes” he posted were meant to deceive people into giving up their right to vote.

      Your comment is the equivalent of saying the guy who sends out emails that claim his uncle is a colonel in the Nigerian Air Force, and wants to use your bank account to deposit $10 million, was arrested for using email. Everything about that statement would be true. It is still a lie. By omission.

  17. I found myself initially sympathetic to the employee. But I was curious what she was doing on Parler, and wondered if that ought to be relevant. Maybe in principle it shouldn’t be. Or, maybe if it’s your employee, and you see stuff you don’t want the business name associated with—advocacy of criminal insurrection, for instance—it should matter.

    A Google search turned up not a clue about her posts. I don’t know whether that means her posts have been wiped, or doesn’t mean anything, one way or the other. Or maybe it just means no one can find out what’s on Parler, because it has been blocked. If nothing else, that would be an argument against blocking.

    So then I started wondering whether it should matter if her posts on Parler had been wiped. It is Parler. But someone with no intent to be violent at all could go on Parler because they wanted to see if there was violent stuff, or threatening stuff there, and to see how bad it might be. But of course those folks would not post violent stuff that might later get wiped during a controversy.

    Then I started wondering whether it matters that she worked for a publishing business, and Parler is another publishing business. I suggest that at a minimum, a publisher ought to be allowed an interest in what an employee is publishing elsewhere—and maybe an interest in whether that employee is freelancing as a competitor for valued contributors. That is a hazard of very long standing in the publishing business. My guess is that would be among the first concerns of a publisher who found an employee publishing elsewhere—is the employee also a competitor?

    Finally, as I often do, I found myself wondering about anonymity and internet publishing. It is striking to me that the bloggers here at the VC all publish under their own names, and although they may sometimes offend some people, when they do so they do it on purpose, under control, and within constraints imposed by libel laws. Whereas, the commenters—who mostly hide behind pseudonyms—too often make gratuitous offense their rule, and among some of them, it’s to hell with the libel laws. It is a striking difference in the quality of the content (not the only difference, of course), and it’s hard not to conclude the anonymity has something to do with the difference.

    As pressure for internet censorship builds and builds, I wonder whether the least intrusive counter for that pressure might be to change nothing else, except to require contributors to publish under verifiable names. If I had a button I could push to make that happen as an experiment, for a few months maybe, I would push it. It would be interesting to see whether all the commenters who insist that anonymity is indispensable to avoid retaliation might instead try to find other ways to avoid retaliation, maybe by publishing better comments.

    I mentioned that last bit, about censorship and pseudonyms because I think it has something to do with why someone might have to be fired for posting on a particular platform. Rules to outlaw firings of that sort might make more sense if everyone were contributing under their own names, and the resulting content were better. The employer would not have to be so concerned about getting implicated in the swill pits.

    1. Why were you initially sympathetic to the employee?

      Are you still sympathetic?

      Upon what basis do you asseverate that most commenters “hide behind pseudonyms?”

      Do you equate use of a pseudonym as de facto “hiding?”

      You appear to be arguing that those who blog under their real identity and write within the confines of libel law produce higher quality content than those who post anonymously. In my view, it just does not naturally follow.

      1. JP can’t make point without couching it so much fluff that a Strausian would accuse him of being Strausian.

    2. I certainly deplore the low quality of many comments here. May I suggest that you start a law blog where you curate the comment section as you see fit, whether that is requiring identification or merely deleting comments you don’t approve of? If it has a better signal to noise ratio, I might comment there – assuming, of course, that you would allow it.

      But I don’t think you should be telling me how to run my blog, any more than you should be telling me who to invite over for dinner, or what kind of decorum I should enforce around my table. After all, I’m happy to let you run your dinner parties as you see fit. Perhaps you should reciprocate?

      1. What’s going on here? Is, “Absaroka,” a sock puppet for Orin Kerr? He tried out the dinner party bit on me years ago, while threatening to throw me out.

        My offense—the one which upset Kerr’s notion of dinner party decorum—was mentioning that the third-party doctrine—which he brought up at his own dinner party, mind you—worked a lot like one aspect of 20th century European fascism. I wanted to keep my comment from sinking into empty rhetoric, so to try to make it substantive, I explained, and Kerr didn’t like it.

        I think we patched it up okay. I decided it was going to be hard to mention fascism substantively and have the substantive part get heard. But I learned it would be just as useful to repeat the substantive part without using the word. That actually turned out to be a better way to argue, and thus a favor I sort of owe to Kerr and his notion of decorum.

        I like Kerr quite a bit. More posts by Kerr would be great. And of course, I would be pleased and honored to be invited to a dinner party at his place, where I would stay on my best behavior. My parents raised me right.

        But one thing I couldn’t help noticing—Kerr was publishing his dinner party world-wide, and inviting everyone in. And now here you are, talking about doing the same, and clutching pearls again about dinner party decorum. Forgive me, but I don’t think the dinner party analogy is a good fit. When you invite me in, you can expect me to be polite. But don’t expect to pat me on the head and tell me what I can say politely, and what not. It’s not really that kind of dinner party.

        1. “It’s not really that kind of dinner party.”

          At the risk of repetition – you should absolutely get to have your kind of dinner parties. Similarly, other people should get to have their kind of dinner parties.

          The adage is ‘do unto others as you would have them do unto you’, not ‘compel everyone to live according to my peculiar preferences’.

    3. Maybe you’ve never had a controversial opinion before (outside of this one), but the reason people use usernames online is because anonymity helps to mitigate real-world discrimination and bias that occurs because of our innate characteristics. Chris Poole, aka Moot, who copied 2ch from Nishimura Hiroyuki and created 4chan, ironically gave one of the only good TED Talks in history where he made the case for anonymity online. I recommend you watch it or read a transcript because you’ve probably never heard a pro-anonymity argument before, at least not a good one.

      1. awildspeaking, I have regularly published controversial opinions under my own name since 1972.

        Before I take a look at Chris Poole, let me offer you the best reason I know of for publishing anonymous opinion. Readers are habitually skeptical, on the lookout for a reason to discount an argument, or to stop reading and get on with something else.

        If the writer is well-known—and especially if the writer is already identified among readers with a particular ideology, set of opinions, or public faction—then anonymity can do a bit to separate preexisting assumptions about the author from the content of a particular argument. Thus, anonymity can sometimes buy a little space for objective evaluation by readers, which might not otherwise be easy to get.

        With one other exception, that’s it. That other exception is important, but in the U.S. it doesn’t often apply. Sometimes governments oppress authors enough to make publishing genuinely dangerous. In such cases, there may be no choice but anonymity.

        So I remain mindful of those advantages for anonymity. But the downside is huge. Unwillingness to identify yourself with your own opinion presents it in a crippled context, as if you are fearful it may be incorrect, or it is unworthy of being associated with you. It makes the author look like either a skeptic of his own work, or like a coward. It devalues the publication in the act of offering it.

        I suggest that if the nation’s founders had not signed the Declaration of Independence, almost none of us would ever have heard of that document. It was knowledge of the identity and probity of its authors which gave the document its weight and influence. Their extraordinary courage in putting their names to it at the risk of their lives was an example to readers to become likewise courageous.

        So those are a few principled reasons for signing in your own name.

        Practical reasons to oppose anonymity include its encouragement of sloppiness, lies, defamations, and frauds. Perhaps most dangerously, anonymity encourages writers to economize on both research and reflection prior to publication. Authors who expect the world to hold them personally to account for what they say think long and hard before publishing uncertain content. Anonymous authors too often just let fly.

        For about 50 years I imposed on myself the standard, never put down on paper anything you would be unwilling to see someday published to the world. I still do it. I don’t pretend to have succeeded in maintaining that, but signing my own name on almost everything I published was useful self-encouragement. I am pretty sure I have done better at it than most of the anonymous commenters I now see on the internet—and that despite that we all actually do publish to the world, in a way I never imagined possible when I began.

        Now I will take a look at Chris Poole. I will not be surprised if he touts some of the advantages of anonymity I just mentioned. I remain curious about how forthright he will prove concerning the downside. I will let you know later what I think.

      2. Okay, Chris Poole’s TED Talk. I confess, I’m baffled. I thought my last comment offered notably better support for online anonymity than he did, and I’m not a big fan of anonymity. Can you explain the magic to me? What’s your favorite takeaway from that talk?

        1. Before I get into specifics, the first part that I find kind of meta is that I view his talk itself as an argument for anonymity. I wonder how the audience would feel if they did not see his small figure, hear his tiny voice, or analyze the concept of anonymity through the lens of 4chan and memes.

          I agree with a lot of what you wrote in your first post. There are certainly times where anonymity can help you break through to your audience if you’re a public figure and there are times where putting your clout to work generates visibility and accountability.

          There are drawbacks to anonymity as well. I agree that with no accountability, people could be incentivized to say some really stupid shit. But is that really any different from non-anonymous discussion? I think it’s perfectly normal for people to err and I like the idea that they can take that risk safely.

          My views about anonymity weren’t shaped by real world conversation as much as by online ones. Before I discovered 4chan, I had never truly been anonymous online. Everyone had a user ID, a place for profile pictures, post counts, join dates, reputation, etc. Objectively speaking, this information is meaningless in a discussion. However, this type of information was always used, whether I realized it or not. People would prejudice your claims based on whether you were experienced enough. They would make assumptions about you based on information provided. They may have constructed a mental image of you based on prior conversations that biases future ones. Some of it was overt, but some of it wasn’t. Those non-overt signals are where I fell in love with anonymity.

          I realize that people are inherently prejudiced and biased. We are always categorizing, labeling and separating people and ideas in some form. I also realize that the more information you provide to someone in a discussion, the easier it is to indulge in these biases. Even in an environment like this where the only information you see about someone else is a username and what they wrote, you still know that you are replying to the same person. You can connect one statement and experience to another.

          Even if we don’t realize how it affects our reasoning, I can’t help but analyze what I’m replying to in the context of your prior response and the subject of the article. I can try to be conscious of it, but how do I know for sure that I can trust the lies my own mind tells me? I don’t think anyone can honestly say they are unbiased. That’s why I deliberately choose anonymity. Anonymity doesn’t stop people from forming cliques and making assumptions about others based on what they wrote. What it does do is shift the responsibility of bias directly onto the reader. Suppose that I had absolutely no way to determine that you wrote both of your responses. Perhaps I would be less inclined to think to myself that your interpretation is exclusive to you. I might have to contend with the possibility that there are other people here who think the same exact way and that my own arguments are not convincing and that my viewpoint is not popular. Should the popularity of a perspective matter? At least in terms of trying to identify if a claim is correct or valid, the answer should be no.

          In this sense, I love anonymity. I don’t know if I would want an entirely anonymous society. Like your examples pointed out, sometimes people just don’t react to good information properly without putting a name to it. It would be easy to call the Declaration of Independence the ramblings of a drunk if the statements who signed it, didn’t. But when I’m shooting the breeze online or trying to find my own way in the world, I prefer to explore in an environment where, by association, all the other thinkers have explicitly and implicitly recognized their potential for bias and tried to reduce the white noise around them as much as possible.

          My personal experience is limited and biased, but like Escher said below, I’ve seen the worst vitriol of all on non-anonymous forums. The things I read on Facebook from some of my “friends” about Trump voters in particular is truly disgusting. I never liked social media to begin with, but I wouldn’t even have an account if family members didn’t want to tag me in pictures. The worst offender of all is a childhood friend of mine who actually works for a recruiting agency where they do research on job candidates to make sure there isn’t anything controversial that their clients should know about. Let’s just say he should use some more professional discretion or delete the majority of his posts before he becomes important enough for someone to bother checking. I’m not saying my opinions would fare better if my friends didn’t know it was me sharing them, but if they can act that savagely despite knowing it’s coming from me, I shudder at how they treat strangers or someone they believe they should be antagonistic towards. In this 2021 environment with cancel culture escalating to the level of political Jim Crow and culture moving away from the values of our Constitution, I don’t know if I feel safe having non-anonymous discussions anymore. That’s partly why even here, I am semi anonymous.

          I don’t know if I would call it a risk of anonymity, but I have a feeling that if we listed all of our values and sentiments, I probably have some more “out there” ideas. As an example, I’ll admit I’ve read some fascist philosophy and at times, mostly out of frustration, I’ve had monarchist sympathies. Not really in the sense of “I think we should ditch the Constitution and establish a kingdom,” but in the sense of rejecting the bullshit narrative I was fed in school about past peoples being primitive savages. I used to think monarchists were morons for thinking that you can pass down the right to rule via blood. Then I realized it had nothing to do with blood, which is why royal succession can get messy, and it actually had to do with keeping it in the family because these dynasties were often established in response to major failings by prior rulers. They devised new systems of governance, realized the unnatural nature of government, and took it upon themselves to teach the next generation. They did not trust the average person to do it and I can sympathize with that given the status of our incompetent, tone-deaf geriocracy that exists only to serve itself and not the people. Sometimes consent of the governed and everything else stops mattering when basic needs are unilaterally ignored.

          Needless to say I’m real careful saying something like that in public life, but I trust that people here won’t take it the wrong way as I wouldn’t be here if I wasn’t somewhat libertarian in practice, but hey good luck connecting any of this to the real me.

    4. “Cato,” “Publius,” “Helvetius,” etc. would be interested in your idea.

    5. A lot of sites use Facebook-powered comment sections, meaning that yeah, the real name is tied to the comment (unless they created a Facebook account under a psuedonym, which violates the ToS).

      Those comment sections aren’t any better. Hell, some of the worst vitriol I’ve had directed at me personally (yes, even worse then what gets slung here at Reason) has been with real-names attached.

      So yeah, given that Facebook exists, and continues to be a cesspool, I think we can mark this experiment as “unnecessary”.

      1. Escher, I don’t use Facebook. Does “real name is tied to the comment,” mean no pseudonyms? The actual real name is always right there on the comment? Or does it just mean someone at Facebook can figure out who a pseudonymous poster really is?

        And by the way, did that vitriol you mentioned include libel?

        1. Yes, it means on every comment, you see the person’s real name†.

          As far as whether or not it’s libel… well, there’s plenty, every day, that you could argue should be libel. But given the state of American libel law, it shouldn’t be a surprise that “Facebook Libel Lawsuit” is not a common headline.
          ________
          †Again, assuming they used their real name when registering the account. But since most people use their Facebooks to connect with other people they know through their real names, that’s most people. The folks who use pseudonyms on Facebook are rare.

          1. Thanks for the info.

          2. Escher, thinking it over, why doesn’t that real-name feature on Facebook spill over to other sites which Facebook commenters also use? How come they are okay with real names on Facebook, but prefer pseudonyms elsewhere?

  18. Based on what you posted of course the firing was illegal. Let me fix it for you.

    If a conservative employer fired someone for just being on Facebook or Twitter the NY Justice Department would have already arrested the person for violating the law quoted.

  19. Can I fire a Trump/Biden supporter simply because they support Trump/Biden and I don’t even when they do not mention it during working hours and it does not impact their work in any way? They do not, to the best of my knowledge publicize their beliefs but there is no question they have them.

    Small employer, less than ten employees.

    1. Probably you can. As suggested in the many postings above, you can discriminate against just about anybody for any reason so long as it’s not an illegal reason. In at will employment situations, that discrimination can include firing. You can be fired for being a Cubs fan, for being a pug dog owner, for liking Wagnerian opera, or Mahler, and, rightly so. In a public accomodation situation, you can discriminate against lawyers, but not if you are using lawyer as a proxy for something else that is protected.

      So, yes, you can probably get fired for your political inclinations if at will.

      That’s my understanding, which is that of someone who has no special expertise in any of this.

    2. Yes, you can.
      But if they are from a protected class be ready to prove when they sue that you did not fire them because of discrimination against the protected class. Remember that the bar is low, preponderance of the evidence.

    3. Every four years we’re inundated with stories of conservative business owners threatening to fire everyone who has a Democrat bumper sticker if the Democrat wins.

      And every four years, we get inundated with articles saying “in most states, this is perfectly legal.”

      So yes, in most states. And yes, you should have already known this.

  20. I don’t know if this interests you or not Dr. Volokh, but do you have any evidence that suggests the founders wanted a two-tiered society or expected cultural changes to this degree? If all of our Constitutional rights only apply to the government, it seems rather unusual that founders would not also want them enshrined in private life. Otherwise, we can create this two-tiered society where as long as the feds aren’t the ones telling you otherwise, civil society can turn you into a leper and ostracize you for your beliefs. Such a society would eventually lead to political segregation and I can’t imagine that the people in these societies would care much for the Bill of Rights. At that point it would just be lip service, which makes me question why we even have the Constitution in the first place. If nobody believes in it, isn’t it just an outdated piece of paper? Who cares if Congress can’t act if we develop a pseudo social credit system and enable private discrimination? Sen. Hawley wrote about that today and I fear he was spot on in terms of the direction we’re heading.

    1. Well that’s one of the reasons we have the Civil Rights Act. If you were black in the Jim Crow era you were ostracized form society

    2. […] but do you have any evidence that suggests the founders wanted a two-tiered society or expected cultural changes to this degree?
      … you do remember there was this little thing called “slavery”, yes? And women being disenfranchised in all sorts of ways?

      I mean, I guess you could argue that they didn’t see that as a “two-tiered society” because they didn’t consider women and non-whites as “people” (and as such, not part of society), but I don’t see how that would make things any better.

      Otherwise, we can create this two-tiered society where as long as the feds aren’t the ones telling you otherwise, civil society can turn you into a leper and ostracize you for your beliefs

      Yup. Again, see blacks, women. Hell, gay folk and the crippled too. And you know that some of the states in the late 1700s had state religions, right? It would be a long (LONG) time before anyone held that the First Amendments prohibition on state religion applied to the states. So yeah, the founders were dandy as candy with letting folks get ostracized for their beliefs.

      Sen. Hawley wrote about that today and I fear he was spot on in terms of the direction we’re heading.

      And Senator Hawley is firmly a member of the “I didn’t thing the leopards would eat my face!” party, so you should keep that in mind when you listen to his very public and widely available whining about how silenced he is and has no way of getting his message out.

      1. I remember those examples, but was it by design? All I really know about the extent of trying to convince the people about the Constitution were the Federalist papers. I know that the founders felt education would be paramount to the success of our new form of government as well.

        I consider past examples different from now because the founders weren’t superheroes. They were flawed people from their time. If they saw they hypocrisy of slavery, they didn’t care and those who did were probably still racist. Didn’t Lincoln say he just wanted to free the slaves and still thought of blacks as lesser people? The point being that I would not consider the hypocrisy of the past as evidence of tolerating it. The examples you cited are of historically oppressed groups who were not deemed valid in that era. I would be more interested to learn about your example of state religion, but even religious divides were severe back then. I think what would be most telling about the founder’s intent, at least in terms of how their vision can fit ours today, is how they viewed this sort of conduct for the protected/accepted groups of the 18th century. Were land owning white men castigated to this degree for speech? I know political violence was more typical back then with duels and literal fistfights breaking out in Congress, but considering the foresight they had to write about so many future issues, I would like to believe they wrote something to the effect of what we’re seeing today.

        I’m well aware Hawley has alternatives, but I don’t like the fact he had to seek them. It rubs me the wrong way and his party affiliation has nothing to do with it. I don’t think any speech should have consequences to that degree.

  21. I was told by I was insane, when I said on this message board that living in Biden’s America was going to be like living in the South as a Republican after Reconstruction ended.

    huh.

    1. And by South, you mean the whites.

      And you want to argue they were the good guy victims during Reconstruction, looks like.

      I know Tucker Carlson made that point, but still, that remains a really dumb take on history.

  22. There is a local hospital that enjoys a good reputation in my community. Due to their malpractice, a relative was grievously injured by their incompetence (the person was the major earner in the family and is not totally blind). No attorney would take the case due to the hospital’s reputation in the region.

    This hospital has major fundraising events throughout the year, including a charity bike ride where people solicit donations for riding.

    Based upon my attitudes toward the hospital, I do not participate or donate to any of their causes.

    So, if an employee of mine decided to ride in the event, and I found out about it, can I fire them in an employment at will jurisdiction?

    If not, why not?

    1. Damn inability to edit.

      It should read “NOW totally blind”

    2. Insufficient information in your hypothetical.
      Is the employee working under a union contract, if so, very likely you can’t.
      Is s/he a member of a protected class? If yes, prepared to be sued for illegal discrimination.
      If you, be prepared to have you unemployment insurance rates to go up. Mostly like the employee can collect.
      Otherwise, damn the torpedoes; full steam ahead!

    3. Lacking other details, and assuming we’re just talking about federal law?

      Yup, you sure can. And the burden of proof that you fired them for a prohibited reason would be on the fired employee anyway. America has far fewer worker protections then most first world nations.

  23. Given the nature of my practice, I would expect to see a lot of cases under this law. But I don’t remember having a case under it in over 30 years. I wonder why? And the volume of reported cases is not large. Perhaps employers, as a rule, don’t care enough about their employees’ legal, non-work activities to fire them? Or too few lawyers know about the statute?

    1. The employers probably don’t care. Unless they want to virtue signal. And that’s what this was.

  24. So people who make comments on the Washington Post or NY Times websites could be fired by a conservative employer?

    Okay.

    1. In most states, and federally, that has long been the rule.

      1. Sure, but the moment conservatives started to do it, lawmakers would be looking for a way to make it illegal, while still allowing them to purge employees for using Gab and Parler.

        1. They’ve done it for years. There has been legislation. None of it works the way you suggest it would.
          If you’re going to play the Hypothetical Hypocrisy (TM) card, make sure it’s actually hypothetical.

  25. Isn’t Colleen Oefelein (née Shipman) the Air Force Captain who was attacked by NASA astronaut Lisa Novak at an airport about 15 years ago because Shipman was dating a man who had previously broken up with Novak?

    If so, perhaps Oefelein is suffering from PTSD from that attack and that disability drove her to Parler and Gab so her actions were the result of her disability. If Oefelein is an employee rather than a contractor and the Jennifer De Chiara Literary Agency is subject to the ADA (such as having 15+ employees), perhaps there’s enough here to contest the firing under the ADA.

    (Okay, if I were a lawyer I might be considered an ambulance chaser but in fact I just enjoy poking at corner cases sometimes).

  26. We all live, shop, and work in the private sector.
    IF YOU DO NOT HAVE YOUR CIVIL RIGHTS IN THE PRIVATE SECTOR, YOU DO NOT HAVE CIVIL RIGHTS.
    Otherwise, because of the lawful exercise of your civil rights, you could be barred from work, from groceries, from buying or renting a house, buying a car, buying gas, etc.
    In other words, squeezed out of existence.
    This cannot be allowed to stand

    1. As it has always been.

  27. It is a pretty shitty thing to do as an employer, even if it is legal, to fire someone merely because they used a social media platform without something more.

    1. It is indeed shitty. We have tolerated employment-at-will because, as a society, we have believed that the law can’t be charged with eliminating all that is shitty in this world, and that as long as workers have a variety of potential employers, employment-at-will will be at worst a pain in the ass, but not a life-crippling injustice.

      The theory was found to break down in some instances, such as in the Jim Crow South, where a public-facing business that decided to do the right thing and hire black employees for jobs higher than custodian would find themselves boycotted and driven out of business. Hence the Civil Rights Act of 1964’s big carve-out from the employment-at-will rule.

      If we want to carve out more exceptions, we have a serious problem deciding where to draw the line. Do we seriously want the Daily Worker, or whatever it’s called these days (), to hire an reporter who in his or her spare time makes Facebook posts extolling the virtues of capitalism and Ayn Rand? Should People for the Ethical Treatment of Animals be penalized for firing workers who moonlight at the local butcher shop? (I deliberately avoided asking whether the chancery of the local Catholic archdiocese be required to hire prominent members of Catholics for a Free Choice, for fear that too many people would say, Of course!)

      But we are facing another serious problem, where those who openly profess right-wing political views, or who are seen as failing to do their part to fight those views (after all, you don’t have to be right-wing to be on Parler) have trouble getting jobs in top law firms, publications, media outlets, and corporations. I don’t have a solution. (Not being a doctrinaire libertarian, I’m not willing to say, Leave it up to the market. Leaving it up to the market broke the Hollywood blacklist; I don’t see it working nearly as effectively against today’s cancel culture.)

      1. I don’t know what the solution is today, but I think we all know what the ultimate solution is if we don’t address the problems you raised.

        If I had to issue a Marxian edict about a singular cause of all the world’s conflicts, it is ignorance of people’s problems. Whether the problem is legitimate or not, if you hold power ignore the opinions of others, chaos will ensue.

        1. Well this is what you get when Marxist tactics are adopted by the body politic. Someone’s employment is a legitimate football to have in the game and is indeed one of the primary targets of the “cancel culture” because it is so easy to get an employer to do what they want. Far easier for boss to fire an employee and watch the mob go elsewhere and the employee has little on their side to negotiate. Sure the employer might be on the hook for unemployment, but that is the “cost of doing business” these days. But little consolation to the employee who can barely pay their bills for the roughly 6 months that pays out. And good luck finding another job when your name is the first hit on an internet search alluding to that you are some sort of evil swine.

          There is no legal “fix” here. It is a cultural one. And unless we start rejecting Marxism anything else is just a band-aid over a gunshot wound.

        2. A lot more than chaos has ensued, does ensue, and will always ensue the implementation of Marxian solutions to problems, whether the same are real or imagined.

          1. The chaos is part of the Marxist program and intent. Easier to implement things when the rabble are busy in the public square chasing the latest manufactured outrage. Also great excuse for the “we have to do something!!!” justification of public policy.

  28. To be safe, everyone with any “social” media account should be fired immediately.

  29. I think political views and party affiliation should be added to the anti-discrimination classes.

    1. Sure, why not increase the chaos?

  30. What if tomorrow Google, Twitter, Facebook, the Washington Post, and the NY Times fired everyone who was not a registered Democrat?

    What if employers made Democratic party registration an employment requirement, for existing and prospective employees?

    1. There is a difference between legal and wise. If those businesses wanted to alienate half the country, I can think of no better way than doing what you suggest.

      That’s the thing about freedom. You may do what you wish, but you have to live with the consequences. Freedom without consequences is only for babies.

      1. Google, Twitter, Facebook, the Washington Post, and the New York Times have made it clear that they don’t give a rat’s ass whether they alienate half of the country. The newspapers think they can do perfectly well without the deplorables’ business, and the media giants think that the deplorables are too dependent on them to walk away from them.

  31. Then there’s the question as to whether the ex-employer can successfully challenge the discharged employee’s unemployment compensation.

    1. I would assume in most jurisdictions you would need something more than just “participated in social media” to be enough cause that would void liability for unemployment. Perhaps if you had an iron clad social media policy that forbid any activity a referee might buy it. But, then again, functionally, most employers never challenge a claim anyhow. Rarely is it worth the time, effort, and legal expense.

  32. Sue that broke state into the stoneage.

  33. Cool story.

    Now do an article about an employee that was fired when the boss found out the employee had Nazi tattoos.

    Because that’s what it’s coming down to… the employee was fired based on (lawful) assumptions the employer made after learning more about the employee’s voluntary associations.

    Or in other words… the employee in question laid down with rabid dogs, and is surprised, shocked even, that her former associates suspect they’re rabid too.

    1. I’m surprised it took five hours to get to the Nazi comparisons.

        1. I am not on anyone’s side because no-one is on *my* side, little Orc.

          1. If the critics of the firing are on the “other” side from you, then your side is…for the firing?

      1. Actually, the first “Nazi comparison” happened at least four hours ago, with Bob from Ohio whining that people thought he was a Nazi.

        My point, however, does not accuse any specific person of political group of being Nazis. It’s just pointing out that yes, you really do get judged by the people you associate with. Being shocked at this is moronic.

        1. “My point, however, does not accuse any specific person of political group of being Nazis.”

          Technically no. You simply compare being on Gab to having a Nazi tattoo.

          1. So what you’re saying is that merely seeing the word “Nazi” has triggered you so much to render you incapable of considering the actual point.

            Got it.

            1. Hitler was a biped. You’re a biped.

              Thus I get to mention you in the same context at Hitler Hitler Hitler.

              Hitler Hitler Hitler.

              I hope that doesn’t distract you from my point.

        2. “It’s just pointing out that yes, you really do get judged by the people you associate with.”

          So when a major political party invites an apologist for Communism, who took his honeymoon in the Soviet Union, of all places (the Bahamas must have been booked), and enjoyed the hospitality of the appartchiks, while refuseniks were suffering in the gulag, and that apologist is welcomed as a major political figure, Senator, and policy influencer, would it be fair to judge that political party for associating with said Communist apologist? And conclude that they are at least soft on Communists, if not worse?

          1. I’m sorry, but anyone who’s whining “that’s not fair” should be laughed out of the room.

            And yes, obviously quite a few people did make that judgement, and far worse.

      2. The nazi comparison is a bad example. There you have something specific and it is reasonable to read some intent into such an association. Here you just have “guilt by association” and a really loose, poor one at that. I think that is most of the outrage. “Oh you are on Gab so you must be evil….” is a really poor reason to fire someone even if it is legal and a shitty thing to do to someone as a human being as well.

        1. Yeah, no. Whine all you want, Parler and Gab were known primarily as havens for right-wing extremists. You can protest that it’s an unfair reputation, but even the fucking FBI thinks you’re full of shit.

          1. I’m sure if say being a democrat became disfavored and resulted in similar firings you would be screaming from the rooftops, but sure stick with it.

            And please give me a cite to where the “FBI thinks I am full of shit” because I would be curious to see.

          2. Whine all you want, Parler and Gab were known primarily as havens for right-wing extremists. You can protest that it’s an unfair reputation, but even the fucking FBI thinks you’re full of shit.

            This is more illogic on your part. The Cayman Islands are known as a haven for stolen money, that does not mean that all the money there is stolen. Brazil is known as a haven for American crooks, since there is no extradition treaty for many crimes. That does not mean that everyone in Brazil is a crook.

            Do I have to draw the conclusion for you, or can you figure it out with paper and crayon?

            1. You’re confusing criminal burden of proof with people making judgements that are solid enough to base an employment decision on.

              Which is to say…

              The Cayman Islands are known as a haven for stolen money, that does not mean that all the money there is stolen.

              If you, an employer, finds out that your non-Cayman Islands native employee has millions and millions stashed in the Cayman Islands? No court in the US is going to convict you for national origin discrimination (or any other kind of discrimination) if you fire them on the basis that you don’t trust that they’re not a crook.

              You may be right. You may be wrong. But you are not expected or required to substantiate your belief to the level necessary to win a criminal conviction. Just not needed.

              Brazil is known as a haven for American crooks, since there is no extradition treaty for many crimes. That does not mean that everyone in Brazil is a crook.

              Similarly, if you’re interviewing an ex-pat (let’s say it’s a job that can be done remotely) who is living in Brazil, and you bring up that their move to Brazil happened within days of them getting into a suspicious car crash in which the other driver died…

              Again, no court in the US is going to call it unlawful employment discrimination if you don’t hire them. Because again, even if you can’t prove that they’re a criminal, and that’s why they moved to Brazil so abruptly, your judgement and discretion is sufficient.

              Do I have to draw the conclusion for you, or can you figure it out with paper and crayon?

              Not necessary. Your inability to draw a conclusion is worrisome enough that I don’t care to see you make the attempt.

              Suffice to say, when it comes to employment law, there is no requirement (or expectation) that an employer is right in their judgement, just that the judgement itself is not based on a prohibited criteria.

              And again… if you visit a site known to harbor right-wing extremists? Well, don’t be shocked if folks think you’re one of the folks being harbored.

              Whether that is “fair” or not is an irrelevant matter.

            2. Bored, if you want to criticize someone’s, “illogic,” it’s probably more effective to stick to what they actually said. When you set up an analogy to talk about, lots of your own logical problems can creep in at the edges. (See, I avoided saying, “strawman.”)

  34. Does it change things that the agent’s use of Parler and Gab is being reported in places as professional, not recreational?

    If she was advertising her services as an agent to people on a platform that is disfavored by her employer, is it sufficiently different to allow the firing?

  35. I can say that in a First Amendment industry – focusing on getting books written and published – the government is limited in how much it can butt in.

  36. A private company should be able to fire employees for ANY reason. That is the libertarian position.

  37. I had a situation in the 1990s with the “gays in the military” issue and relocated to a different part of the company to avoid a conflict over my public speech (to lift the ban, with some caveats). These are legitimate ethical problems, that the law cannot always address with precision.

  38. If, in China, the person was fired by an non-governmental employer for using Facebook, an expressive behavior of political significance. When she comes to the United States, she could apply for asylum; and we would find that the incident constitutes past persecution on account of political opinion and therefore grant her asylum. Then, she becomes a U.S. citizen and starts using Parler; and then, she gets fired, and the law does not help her. Is there anything wrong with this pictures?

  39. I submitted my first comment. It is not displayed. I wonder if I did it right, Any suggestions?

    1. If this employee was in China, she could have been fired because of her use of Twitter, which her employee did not welcome. However, when she came to the United States, she could apply for asylum based on her past persecution on account of imputed political opinion, and we would grant her asylum. However, when she started working here as a refugee, she could be fired for using Parler, which her employer would not approve. Is there anything wrong with this picture?

      1. Not only refugees from foreign countries may have been persecuted on account of political opinion. Political persecution may occur here as well.

        1. If political opinion is not a statutorily protected characteristic, why do we have a ground for asylum?

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