Opinion policing beyond the pale

Sanctioning thought rather than action is a dangerous road, writes Ben Brooks.

Former Mozilla CEO Brendan Eich. (Image via Drew McLellan, Flickr.)
Former Mozilla CEO Brendan Eich. (Image via Drew McLellan, Flickr.)
Former Mozilla CEO Brendan Eich. (Image via Drew McLellan, Flickr.)

LA Clippers owner Donald Sterling is a devout racist. Mozilla CEO Brendan Eich is firmly committed to denying gay rights. Sterling will be forced to sell his team and pay a $2.5 million fine for making remarks incompatible with the racially progressive culture of the NBA. Likewise, Eich was forced to resign last month after it emerged that he had donated to Proposition 8, a 2008 Californian proposal to ban gay marriage.

These controversies exemplify how social and economic pressure can be applied to eliminate hurtful and outmoded prejudice. But like so many repellent human beings, Sterling and Eich also raise some difficult questions about freedom of speech, and freedom of thought.

The exercise of free speech is always accompanied by the prospect of ridicule, boycotts, and ostracism. Ideally, that is how freedom of speech works – how unpalatable ideas are tested and moderated. Speakers who embrace cruel or hateful ideas are sanctioned for expressing those ideas, and both Mozilla and the NBA have been praised for their strident reprisals.

Yet what Sterling and Eich committed were not acts of public expression. They have been sanctioned merely for holding an idea, and for entertaining a thought.

Sterling, for instance, made his comments in conversation with a mistress. They were surreptitiously recorded, and leaked without consent to the press. No one cared to inquire whether his opinions manifested themselves in racist management or racial abuse. In his dealings with the NBA, there is nothing to suggest that they did. It was enough that Sterling merely held racist thoughts.

Oddly, however, Sterling escaped a string of discrimination lawsuits between 2003 and 2006 with his reputation unscathed. Former tenants and the Department of Justice tendered compelling evidence alleging that Sterling – a wealthy landlord among other things – discriminated against African-Americans, Hispanics, welfare recipients, and parents. He concluded a settlement described by a District Court judge as “one of the largest in this type of case”. Yet the litigation was all but forgotten. Only an unverified recording would bring him down, containing nothing more than the unbalanced ramblings of an old, institutionalised white man.

Likewise, consider Eich. By all accounts, he supported an inclusive work environment at Mozilla. His $1,000 donation to the $39 million Proposition 8 campaign was paltry. He never sought to use his name, the Mozilla brand, or company resources to advance the cause. At the time, President Obama shared his belief. Yet privately supporting the legislation was enough to compel Eich into ignominious retirement six years later.

Eich should have anticipated California’s campaign finance disclosure laws. They are exceptionally transparent. Australia, by comparison, only identifies individuals who donate more than $12,000. But Eich hardly intended his donation to be a public expression of his beliefs, nor an invitation to engage in public debate. Likewise, Sterling did not intend that his comment would become a matter of public record.

Certainly, they hold objectionable ideas. It is reasonable to expect that ideas likely to hurt or offend others will remain unspoken; if an errant thinker chooses to express those ideas, they rightly expose themselves to public censure, or even legal penalties.

Yet even if the bigots and Bolts of the world are expected to speak guardedly, they should not be expected to think guardedly. Individuals are entitled to hold opinions free from the threat of social coercion. That is the primary function of secret ballots, after all. There is a fine line between convincing people that an idea is repulsive, and compelling them not to hold an idea at all.