The (Ex-)CBS Executive Who's (Not) the Next Google Software Engineer!

After the horrifying massacre in Las Vegas this weekend, one CBS executive (business-side, not content-side) put up a Facebook post saying she was "not even sympathetic" to the victims because, as country music fans, they were probably Republicans and thus partially culpable for the epidemic of gun violence in this country.

She was fired.

I don't have a particular problem with that. Her comments were obviously repulsive, and if CBS decided that they were beyond the pale, casting doubt on her ability to work empathetically and sensitively with others, then this remedy seems well-within bounds.

And it seems most people agree. Because we haven't heard her compared to the Google software engineer. Or the Mozilla CEO. Or, on the other side, NFL players kneeling during the National Anthem.

What to make of all this? I don't think that it's actually a lack of principles, precisely. Rather, I think this demonstrates that we need to make judgment calls, and that there's no substitute for nuanced, critical consideration. A pure "free speech" position can't work in the private sector, and few of us seem to desire it anyway. At the same time, a "if you don't like the political line the company forces you to espouse, you can get a new job" line doesn't seem to map onto our intuitions about free speech or political freedom either.

It requires thinking. And sometimes, it's the easy, unthinking cases -- the uncontroversial termination of an executive when her speech really does seem obviously beyond the pale -- that illuminates the thought that needs to go into the more difficult ones.

Corporate Governance

Much of the liberal dismay over Hobby Lobby (and before that the campaign finance cases) has centered around the question of "corporate personhood" -- whether a company, like an individual, has the various rights protected by the Constitution. I've always thought this was the wrong question. I think everyone agrees that corporations should not have the right to vote, on the one hand. And on the other hand, I think everyone does agree they have the right to the freedom of the press -- shutting down the New York Times and justifying it because "it's a corporation" wouldn't fly with anyone.

So really the question isn't "do corporations have 'individual' rights", it's "what rights do corporations have." But even that, I think, doesn't get at the dismay so many felt over Hobby Lobby. I don't think the problem is necessarily even that Hobby Lobby asserted a freedom of religion claim. There are corporate-religion claims that I can imagine many people finding plausible and worth endorsing -- a kosher butcher suing over state restrictions on meat slaughtering. Another would be the efforts of Jewish-owned businesses to be exempt from Sunday closing laws (efforts that were almost entirely unsuccessful, at least in the courts).

The problem is that Hobby Lobby's decision feels less like "respecting an individual's choice of conscience" and more like "government imposing its religious beliefs onto me." And here's the important point: from the vantage point of its employees, Hobby Lobby bears a much closer resemblance to government than to a fellow citizen.

As a private citizen I might be able to request a religious exemption to, say, wear a beard at work or have Saturdays instead of Sundays off. This has at best an incidental effect on people-not-me. By contrast, if I assert that an entire highway needs to be moved to accommodate my religious sensibility, affecting thousands of other people, I'm going to encounter far more skepticism. We tolerate religious accommodations where they are primarily private matters that have an at most incidental impact on other members of the polity (which I support -- why not?). But Hobby Lobby's decision is hardly private; the primary effect of its decision is felt by its workers. In its ability to seriously and materially impact the lives of thousands of other people, Hobby Lobby is approximating a government far more than a person.

The broader point is that for most people, most of the time, the entity that "governs" their daily lives and conduct is not Congress, its their employer. Your boss largely decides how much you're paid, what benefits you are entitled to, when you can come and go, even what you must wear. There are differences, of course. A business relationship is contractual; I can leave for a new job. But then again, in the formal sense I can move to a new state or country. And in this economy, it is hardly a given that (practically speaking) people can willy-nilly move about jobs or countries. Ultimately, the ability to exit is somewhat more robust in the corporate context. But there are other areas where government has the advantage. I have many routes to influence my government, including voting, campaigning, writing letters, and protesting -- in fact, I have a right to submit grievances. There is typically no functional analogue in the corporate context, and many of the above options are a quick route to being canned for insubordination. Advantage: government.

In any event, the point is not to say whether government or corporations on net do or can deprive us of more liberty. Functionally speaking, most of us most of the time are subjected to corporate, not congressional, governance. That the company plays this role in our lives means people are -- justifiably -- going to mentally slot it in as a ruler rather than a peer when it starts making decisions that impact us. Fundamentally, it's a rejection of the libertarian conceit that economic relations are the free interaction of coequals. Rather, we're talking about what powers "government" -- defined functionally rather than formally -- has over individuals. And when the government tries to say "we're going to obstruct your access to contraception because we find it religiously immoral", people are going to have the same reaction as if an old-school government made the same decision.

Mad CEI Men

The Competitive Enterprise Institute (perhaps best known for their pro-Carbon Dioxide ads -- tag: "They call it pollution. We call it life!" recently hosted a Mad Men themed fundraiser. The thesis is that Don Draper would be appalled by corporations always apologizing for this or that misdeed. Take BP. Sure they basically destroyed the Gulf of Mexico and nearly beset a flaming wall of alligators onto Louisiana. But that doesn't mean they should be apologetic. This is America, damn it!

As the writer notes, the CEI doesn't actually take Draper's mercurial spirit seriously enough, citing to his famous anti-tobacco letter that was as pure a business-oriented mea culpa as they come. Businesses run apologetic TV ads because, one presumes, they're better for business than the alternatives -- particularly for firms with unlovely reps. That's part of the market too -- sometimes, the market doesn't reward your testosterone fueled fantasies.

Video Game Night Roundup

I've been on a bit of a gamer kick recently. Borrowed Mass Effect, beat that the other day. Then I pre-ordered the new Assassin's Creed. Then I bought Mass Effect 2, Fight Night Champion, and Super Smash Bros. Brawl. I beat Fight Night just an hour ago.

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Intriguing gambit: US goes to the WTO to argue that China's "great internet firewall" represents a restraint on free trade.

Hey remember when groups like the ZOA were aghast at the prospect of American Jews criticizing Israel? They lost that principle real quick.

Interesting bit on WaPo about Herman Cain's racial background.

Don't see this every day: Libertarian blogger asks whether we should abolish the corporate form.

Corporations are People Too!

It might be a sign of just how outside the mainstream the Citizens United decision was that the Washington Post just published a quasi-serious article on the quasi-serious effort of Murray Hill, Inc., a Public Relations firm, to get on the ballot as a Republican in the 8th District of Maryland.

February Blues Roundup

I've been feeling very tired these past few weeks -- both physically and academically. Someone said I had the "February blues", which depresses me (paradox!) because I like February. I find winter to be a beautiful season, and February contains my birthday.

Anyway, I think I might be snapping out of it a little. So that's good.

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Write your very own incendiary blog post

Is Citizens United the perfect wedge issue for Democrats? Answer: Only if they can muster the balls to really take on corporate power.

More race-baiting in the 9th congressional district. Fortunately, this electorate in this district has proven itself against these sorts of campaign tactics -- though Cohen's opponent poses easily the toughest challenge of his congressional career.

New Virginia Governor Bob McDonnell (R) reverses non-discrimination protections for gay state workers.

Fortunately, the American people are moving in the right direction on gay rights.

And the Jewish Council on Public Affairs is also set to endorse DADT repeal.

Arizona's proposed rule barring all use of foreign or religious law in state court adjudication is unbelievably stupid.

Jon Chait eviscerates the principle-less Harold Ford.

What drives the tea party movement? The fact that affluent conservative White men don't like President Obama or his policies. Wow -- shocking political development.

Rep. Jason Chaffetz (R-UT): 9/11 troofer?

Iterative Roundup

What is this, three in a row?

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American Jews signal their worries about decreasing pluralism in Israel, warn that their support isn't unconditional.

OneVoice sends its representatives into the heart of refugee camp and an illegal settlement for town hall meetings.

Tom Campbell: demonic sheep.

Scott Fujita steps up to the plate on gay rights.

If corporations are persons, why can't they run for Congress? Well, one corporation is testing the waters, announcing it is entering into the Republican primary for the 8th District of Maryland (my congressional district). The company is a liberal PR firm, so this is more akin to the California petition to end divorce than anything else (via).

Two possible SCOTUS vacancies for the Obama administration to grapple with. My money is on Kagan snagging at least one of them.

Henderson's WIP

I don't believe I've mentioned that I'll be keeping up my blogging for the UChicago Faculty Blog this summer, writing up each week's "works in progress" (WIP) talk. The first of those posts is now up, featuring Prof. Todd Henderson's presentation on the "nanny corporation".

Doing Well By Doing Right

A few days ago I finished David B. Wilkin's article From "Separate is Inherently Unequal" to "Diversity is Good for Business": The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar [117 Harv. L. Rev. 1548 (2004)]. It undertakes a sophisticated analysis of the so-called "business case for diversity" (that diversity in various ways improves the bottom line of corporations, and thus companies should pursue it), and sounds alarms as to why it may not cross-over well in terms of advancing the career prospects of Black lawyers in the corporate bar (though his ultimate conclusions on the matter are mixed).

It was one of the better articles dealing with diversity issues that I've read, and it's critical approach was an important one for me to keep in mind as someone who really is a cheerleader for diversity as being part of "doing well" as well as "doing right."

However, this article on Law.com, detailing how big corporations are beginning to demand real commitment to diversity from the law firms they work with, offers hope to those demoralized by Wilkins article. Most notably, it provides examples of companies taking aggressive action to prevent "gaming" -- companies who, for example, bring a Black attorneys to client meetings to flash diversity but give him no substantive work on the case. If companies were just showing "commitment to diversity" as a PR effort, this would probably be sufficient to insulate themselves from criticism. The fact that they trying to eliminate that sort of superficial diversity effort and are demanding that attorneys of various backgrounds actually get assigned to the meaty parts of the cases indicates that they see value in diversity beyond just imagery.

Something Corporate

Jonathan Adler complains that Starbucks allows you to personalize their gift cards so they say "People not Profits" or "Si Se Puede," but not "Laissez Faire." This is, of course, ironic, since it is (relatively) laissez faire economics that allow Starbucks its prosperity in the first place.

But doesn't Adler realize that the irony is precisely the reason for the prohibition? Starbucks realizes that part of its continued health as a coffee chain business is maintaining its image as hip and humane, and conversely, not some soulless MNC. "Starbucks -- Laissez Faire" cuts against the image they're trying to project, so they restrict it. All perfectly within their rights and totally rational in the pursuit of profit.

Diverse White Men

Corporations are increasingly turning to White men to head up the diversity divisions of the company. Richard Bales seems skeptical, and it's possible that this is a case of White men colonizing one of the few top-level jobs dominated by women and minorities. But I hope not, and the corporations' reason for the trend is intriguing:

It's part of an effort to get diversity programs off the sidelines and into the mainstream of the business. Having a white man champion diversity efforts -- particularly one who works in operations rather than human resources -- can help bring other white males on board, the theory goes.

Too many diversity initiatives make white men feel defensive, says Frank McCloskey, a white male operations veteran named Georgia Power's first head of diversity in 2000 after the company was sued for allegedly discriminating against blacks in hiring and promotion. He believes firms must engage white men to change the company culture.

When Mr. McCloskey was appointed, 63% of Georgia Power's employees were white men. "How can we ever create sustainability if you don't have 63% of your work force feeling that there's something in it for them?" he asks.

Provisionally, I support this. A long standing theory and goal of mine is to try and enlist White men into the pro-diversity cause, and I think many of the lessons of Critical Race Theory and storytelling scholarship implies that having White voices dedicated to those goals will be critical for the success. I realize that there is a bit of counter-intuitiveness towards putting White men in charge of diversity divisions, and many of the employees are questioning their qualifications. That's their right, and I think the onus is on the White guys to show that they are truly committed to creating a diverse workforce--that their efforts to incorporate the White male employee population do not come at the expense of sacrificing the larger agenda. That's the provisional part--whether or not this will work is an empirical question, and while I think it's worth a shot, it's possible it will not be as effective as I hoped. In that case, like in all things, we'd need to re-evaluate.