If You Care About Free Speech, Make It Harder to Fire People For Unpopular Opinions

Unionization is the most effective method for protecting workers’ rights to free expression.

As a democratic socialist, I disagree with conservatives about almost everything.

I think they’re wrong about health care, wrong about student debt forgiveness, wrong about abortion, wrong about the prevalence of racism in American society, wrong about issues of war and peace, and wrong about the profound injustice of rampant economic inequality.

But I do think that free speech is profoundly important. And that’s one question where, at least on the surface, there’s no air between what I think and the stated position of most conservative commentators.

But my challenge to those right-of-center commentators on this Labor Day is a simple one. If they really care about free speech, they should want to make it harder to fire people with unpopular opinions. And if they want that, they should want to make it easier for workers to organize unions.


So why don’t they?

What “Free Speech” Means

Conservative commentators tend to talk a lot about the value of free speech.

Here, for example, is conservative superstar Ben Shapiro waxing eloquent about the importance of free speech and open debate about controversial ideas in his testimony to Congress three years ago. Here’s Turning Point USA’s Charlie Kirk insisting in a Q&A on a college campus that “even the most disgusting speech” should “absolutely be protected,” and bemoaning what he sees as the drift of the American Civil Liberties Union (ACLU) away from being resolute about this principle. Sean Hannity actually wrote the introduction to a book about censorship.

I can nod along to all of that. In fact, I agree with the apparent position of these commentators that “free speech” shouldn’t be understood in narrowly legalistic terms.

We’re often told that “free speech” is defined by the First Amendment to the U.S. Constitution, which merely prevents the government from carrying out censorship. But “free speech” is also a value that should inform how we think about a variety of non-governmental contexts—as many conservative commentators seem to understand.

So, for example, in the congressional testimony linked above, Ben Shapiro objects not just to Congress passing censorious laws, but to college students pressuring administrations to disinvite controversial speakers. More recently, when the organizers of a major podcasting convention apologized for allowing him to attend, he repeatedly referenced “free speech” in his on-air response. Given a narrow libertarian understanding of freedom, this wouldn’t make any sense—the convention is a privately organized event that legally can do whatever it wants.

The most vapid cliché in circulation on this subject is that “freedom of speech doesn’t mean freedom of consequences.” And if what’s meant by this is that freedom of speech doesn’t mean freedom from all possible consequences, that’s true enough. Hardly anyone disagrees, but sure, if someone somewhere is silly enough to think freedom of speech means freedom from bad Amazon reviews, I disagree with that person. The only thing freedom of speech could mean, though, is freedom from at least some consequences.

So what consequences are those? A popular centrist liberal position is that the only consequence a commitment to free speech should commit us to trying to protect people from is government censorship. But I agree with Shapiro’s apparent position that it makes sense to think about the free exchange of ideas as a value that applies to a broad range of contexts that come together to define what sort of society we want to have.

Do we want one where people feel free to speak their minds about a wide range of subjects—and where they have easy access to a wide range of points of view so they can read everyone, watch everyone, and make up their own minds about controversial issues?

If so, we should think realistically about what kinds of consequences people in the contemporary United States are actually worried about when they speak their minds.

The U.S. is very far from being a perfectly free and democratic society. Grotesque levels of economic inequality inevitably translate themselves into wildly unequal capacities to shape public opinion and influence elected officials. And the FBI and local police forces have an ugly history of cracking down on radicals, ranging from the McCarthy-era suppression of the Communist Party to the FBI’s persecution of the Black Panthers in the 1970s to the ongoing attempt to extradite investigative journalist Julian Assange to face charges in the U.S.

“...‘free speech’ is also a value that should inform how we think about a variety of non-governmental contexts—as many conservative commentators seem to understand.”

But the United States is enough of a democracy that the vast majority of people in the vast majority of contexts aren’t worried about being hauled off to jail for saying the wrong thing. What they do worry about is losing their jobs. If you know someone who uses social media under a pseudonym, or who refrains from expressing political opinions there entirely, that’s very likely their main concern. It’s also the main reason why “doxing” holds so much terror—even if an employer doesn’t care about your speech, it’s often a better business decision to cut you loose than to take the heat. The same fear keeps people from doing everything from marching in protests for causes their boss would disapprove of to complaining too loudly about conditions on the job.

And the solution to this problem is a very simple and very long-established one.

When workers are members of labor unions, their contracts typically stipulate the conditions under which they can be disciplined or fired.

Labor laws compel unions that have won recognition at a workplace to represent the interests of all of their members. If you get fired for your politics and you can prove that the union officials who represent you decided to do nothing because they don’t like you either, you can actually take them to court for their failure to represent you. And while they might win that case (given ambiguity about exactly what happened, they have some latitude about how that duty is carried out), in practice, any halfway competent union steward will aggressively represent any worker with half a shadow of a good case that they were unjustly terminated. Getting workers their jobs back is, in practice, a big part of their job.

How To Deliver Free Speech Rights in Practice

The rate of private sector unionization in the United States is 6.1 percent. But many times that number of workers tell pollsters they would like to be part of a union if the opportunity arose.

Unfortunately, current labor law makes that needlessly difficult—and this is in large part due to exactly the kind of politicians enthusiastically supported by the likes of Ben Shapiro, Charlie Kirk, and Sean Hannity.

Under the Trump administration, for example, the National Labor Relations Board (NLRB) waged a relentless war against union organizers, reversing many Obama-era precedents that were favorable to unions. And even now with a more favorable NLRB, the whole structure of American labor law systematically makes organizing difficult. For example, even after a majority of employees at some workplace have signed cards saying they want to organize themselves into a union local, they have to deal with a protracted election process where only one side (the boss’ side) can force them to attend “captive audience” meetings to barrage them with scare-mongering anti-union propaganda—often including not-so-veiled threats that the workplace will be shut down.

The “PRO Act,” proposed in 2021, was supposed to create a more favorable environment for organizing—for example by banning “captive audience” meetings and stopping employers from cynically reclassifying employees as “independent contractors” to evade unionization efforts. To the best of my knowledge, not a single elected Republican supported it. Neither did Ben Shapiro or Charlie Kirk or Sean Hannity.

I’ll take their claims to care about the free speech rights of ordinary Americans seriously the day they do.