J.P. Messina (Purdue University), "Private Censorship"

Oxford University Press, 2023

By J.P. Messina

In the wake of Hamas’s brutal terrorist attack targeting Israeli civilians, many Harvard University student groups and their members signed a letter placing the sole responsibility for the attacks on Israel. Bill Ackman and other corporate leaders quickly called for Harvard to release the list of signatories, clearly intending to put the corporate world on alert against hiring them (and announcing an intent to avoid hiring signatories themselves). Days later, a truck with a billboard drove through Cambridge displaying the names and faces of those associated, further raising the stakes.

To some, calls (like Ackman’s) to punish even deeply misguided speech raise significant concerns about free expression. We must, they argue, think carefully about how better to protect free speech against corporate power, possibly through law. To others, especially those who think that the right to free speech is held primarily against state agents rather than private individuals and organizations, these worries are misplaced. Speech has consequences and we should not be surprised when people speaking irresponsibly are held to account for those consequences. Talk of censorship is a hyperbolic distraction.

Who is right?

Though my recent book, Private Censorship, was out of my hands long before any of this happened, the point of writing it was to help us think more clearly about when private speech restrictions of this kind are troubling and how we should respond when so.

In the book, I define censorship as “the attempted suppression of expressive content on the grounds that it is dangerous, threatening to (moral, political, or religious) orthodoxy, or inimical to the material interests of the agent aiming to suppress it” (7). Censors attempt to suppress speech by associating it with a cost or by removing it from view more directly. When they do, the idea goes, they do so for a particular set of reasons: they think the speech is dangerous, threatening, or costly. So understood, censorship makes no necessary reference to states or their agents. Anyone who attempts to suppress speech for these reasons and by these means counts as a censor.

This might suggest that I am firmly in the first camp: the camp that views private threats to free speech as a problem urgently in need of a solution. And yet understood as above, censorship is a descriptively neutral term. Identifying an instance of censorship is one thing. Determining its moral valence is something else entirely.

Relevant to the latter task is determining whether the agent acting as a censor has a right to act in the way constitutive of censorship. As a legal matter, many states do not bar companies from making hiring and firing decisions on the basis of speech. For many firms, I argue, this is as it should be.

Do my sympathies then lie with the second camp, those who think that we shouldn’t worry much about corporate censorship? Not so fast. For even where moral rights to association and speech entail that private organizations ought not to be legally stopped from hiring and firing employees for their constitutionally protected speech, this is not the end of the story. We must still ask: does the private party exercise its rights well or poorly? This will depend, among other things, on whether their activity is organizationally rational and whether it strengthens or compromises the kind of atmosphere we have reason to value, if we value free speech.

So what of the case above?

Let’s focus for simplicity on Ackman’s own firm, Pershing Square Capital Management, a company of just thirty employees. The first thing to notice is that Pershing appears to be what I call an intimate firm. Extending Supreme Court doctrine on intimate associations, a firm qualifies as intimate on my view “if it is highly selective in terms of its membership requirements, [is] relatively small in size, has relatively low turnover in membership, limits participation in its central activities to members, and generally excludes strangers” from such activities (71). Pershing is clearly small in size; it has had historically low turnover; participation in firm activities is restricted largely to employees and the board. Given the complex nature of capital management, the firm is highly selective in recruiting new employees. The second thing to notice is that Pershing is not constituted to serve any expressive purpose. It is not trying to develop a point of view. Its interests are primarily in the successful and profitable management of assets.

Whereas the first condition suggests that Pershing has a weighty associative interest in excluding persons the basis of their speech, the second condition suggests that Pershing lacks a strong interest in expressing its own ideas. But, on my account, either of these interests is enough to make it the case that the firm really should be afforded the right to hire and fire in ways sensitive to employee- and prospect- speech. That means, at least, that we should not be endeavoring to stop them doing so through law.

Next, we have to ask: assuming they act as described above, are they exercising their rights well or poorly? So far as they might refuse to hire the right person for a particular role by grounding their decision to exclude on information that has little to do with predicting success in capital management, we might wonder about whether the firm is undercutting its own interests. We also might wonder if its organizational efficacy might be better served by maintaining a more ideologically diverse team. But perhaps most importantly, we might ask whether firms making decisions in these ways sets back our broader social interest in an atmosphere conducive to free expression.

Here are some mundane reasons for thinking that it does precisely this. Colleges and universities are places for young people to try out ideas, test them, and learn about their effects. We want environments that serve those purposes to be environments where people are willing to take risks, where they are willing to take a stand for a position, even if that stand has substantive problems, even when it is offensive to others. But students are less likely to take these risks if they have good reason to fear that doing so could seriously impact their employability. Threatening to blacklist students for their controversial speech can thus exert a chilling effect on speech exactly where we must keep the costs of expression low. Already, it is understood that one does best, prudentially speaking, to avoid discussing Israeli-Palestinian relations. (Up for tenure this year, my colleague quipped: only a few months until you can tweet about Israel-Palestine!) We should want to reverse course on this, not double down.

This suggests that calls like Ackman’s can cause a precious common resource (an atmosphere in which people do not unduly self-censor to avoid harm to their material interests) to deteriorate. As other firms follow his lead, we can expect these effects to worsen. But not only that: this kind of response to the students’ letter misses an opportunity to engage them in constructive dialogue. Rather than convincing signatories that they’ve taken the wrong position, potentially advancing their understanding, it aims to intimidate them into silence. When dealing with issues rife with disagreement, where the stakes of getting things right are high, this is not how we should want things to go. Accordingly, we have good reason to use our own rights to speech and association to pressure Ackman and other corporate leaders to take a different tack. A lot hangs in the balance.

At the end of the day, then, there is wisdom in both of the immediate reactions to Ackman’s call to expose and blacklist those that signed the Harvard letter. But there are also important respects in which these responses are incomplete. This is a consistent finding of Private Censorship. Whether the issue is employer regulation of speech (Chapter 3), social censorship (Chapter 2), the censorial abuse of editorial authority (Chapter 4), or censorship on social media platforms  and search engines (Chapters 5 and 6), there is a lot to be learned from all of the debate’s participants. But, for just that reason, we should also be slower to draw strident conclusions than those same participants often are. I hope you’ll check it out!