When Mozilla Fired Its Founder: On the 10 Year Anniversary of Brendan Eich Leaving His Company

Co-founder of Mozilla and creator of JavaScript, Brendan Eich had made remarkable contributions to the technology sector. He also had contributed $1,000 to the (successful) Proposition 8 campaign against same-sex marriage. On April 3, 2014, Mozilla forced him out of the company he had founded, with apologies for not having acted sooner.
Watching it all unfold, Prof. Todd Zywicki was concerned, warning that this would not stop with financial contributions for ballot initiatives – that it was not a stable equilibrium. At least at the time, Inez Stepman was less troubled, confident that such disagreements could be resolved through market forces. Who was right? Join us for a conversation with Prof. Zywicki and Inez Stepman, as they reflect on the campaign against Brendan Eich, consider lessons learned, and discuss the implications for freedom of thought today.
Featuring:

Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Inez Stepman, Senior Policy Analyst, Independent Women’s Forum

Episode Transcript

(00:03):
Welcome to today's Federalist Society virtual event. Today is Wednesday, April third,
and it is also the ten yearanniversary of brendan Ike being forced out of
the company he'd founded for having madea contribution to the successful Prop eight campaign
on same sex marriage. I'm AlitaCass, Vice President for Strategic Initiatives at

(00:24):
the Federalist Society and director of theFreedom of Thought Project, an initiative addressing
new challenges and questions involving freedoms ofthought, conscience, and expression. Today's
program connects a few recurring themes forthe Freedom of Thought Project. How do
people experience coercion? Why do peoplefeel unfree? And how do we resolve

(00:47):
competing claims to freedom in a freesociety? And really, why would we
care what happened ten years ago atMozilla? It was a private company making
a business decision about who should runthe organization. Why even ten years later
do people remember Mozilla and brendan Ike. I am delighted to have Todd's Wicki

(01:10):
and an as Stepman with us todiscuss what happened, why we care,
and what it means to live ina free society. Professor Todd's a Wiki
is the George Mason University Foundation,Professor of Law at Scalia Law School,
and former executive director of the GeorgeMason Law and Economics Center. Nez is
Senior policy analyst at the Independent Women'sForum, host of the High Noon with

(01:34):
Anez Stepman podcast, which hosts conversationswith heterodox thinkers on important cultural and political
subjects. As always, please notethat all expressions of opinion are those of
our experts on today's program. Weencourage audience audiences audience members to submit questions

(01:57):
for our panelists through the Q anda feature at the bottom of their screen.
Thank you so much for joining ustoday and as the floor is yours
wonderful, thank you so much forhosting this conversation and for reminding us all
with the topic of what actually occurredten years ago. It really got me
thinking what I thought then, howI saw the land the political landscape,

(02:21):
how I thought about freedom of speechthen versus now, How I thought about
what's necessary for a free society thenversus now. I think if it's hard
to deny that it was really awatershed moment and unfortunately a harbinger for things
to come. For the next tenyears, but the first thing, Professor
Zeicky, I want to ask youis for those who were don't remember it,

(02:45):
or perhaps we're too young to rememberthis incident, what happened with Brandon
I at Mozilla, What events transpiredthat then became sort of something that sounds
very familiar to us ten years later. Thanks and as in thanks Aleada for
for marking this this dubious anniversary often years, because ten years ago sort

(03:12):
of the the earth shifted on itsaxis. I think we saw a dramatic
change in the world in both withwhat happened with brendan Ike, and in
many ways it really was the big, the big old Canarian the coal mine
that gave us an augur of whereeverything was was going. Brendan Ike is
he said, was basically the founderof Mozilla, that created the Netscape browser

(03:38):
that was very popular. I usedto use it back in the day.
And he was sort of the youknow, an unusual corporate structure at Mozilla.
I don't think we need to gointo it, but but he helped
create he was Mozilla's chief architect.AOL bought Netscape and then eventually they created

(03:58):
the Mozilla foundation kind of restarted andhe was the chief technological Chief technical Officer
and had continued developing the Netscape browser. Finally, in twenty fourteen, as
sort of the guy who knew themost about the company, he was named
the CEO of the Mozilla Corporation andimmediately March twenty four, twenty fourteen,

(04:21):
and immediately the world freaked out.It turned out, as a leader said
at the outside, Ike had donateda whopping one thousand dollars to the in
two thousand and eight, several yearsbefore to California's Proposition eight, which had
called for the which defined marriage astraditional marriage one man and one woman and

(04:46):
not as same sex marriage. Hethen also supported as a political candidate Tom
McClintock, who had run for officeand was a supporter of Proposition eight.
It's kind of on clear what happenedafter that, but it led to certain
members of Mozilla's board resigning. Andwhat really happened that was significant is that

(05:10):
employees freaked out and out in California, employees freak out. But this was
a freak out basically by the ideathat by donating to what, as Alita
said, a majority of Californians agreedwith, which was defining marriage at the
time as one man and one woman. He caused he upset all the LGBT

(05:36):
community at Mozilla. They said itwas intolerable, they could not work for
this person who had donated money toProposition eight and an activist. Employees and
others ramped up the pressure for himto resign. Two days later, Ike
expressed sorrow and for causing pain andpromised he would work with LGBT communities and

(06:03):
allies at Mozilla. That still wasn'tenough, and finally on April third,
I stepped down basically under all thispressure. And what significant I think most
about this was the outside activism thatforced people to put pressure on Mozilla,

(06:23):
but also the employees, the rankof found employees in Mozilla who believed that
they had the right to determine whothe CEO would be and the criteria under
which they should be expected to workfor the company. And at the time
it didn't create a lot of alot of attention, I think, but

(06:46):
for whatever reason, I noticed thatat the time and I said, this
is a significant change in history.There's a lot going on here that needed
to be taken account of. Andas leaders suggest that this is to some
extent become mainstream since then and becomemore and more common. This was kind

(07:08):
of a prototype for sort of corporatewokism and activism and employee sort of activism
in the time since. Yeah,Before I get into some of the broader
social questions and then perhaps even someof the legal questions around us, I
want to share a bit about howI saw this incident. I grew up

(07:30):
in Silicon Valley and I remember theProp eight battles. I remember these tactics
being used in two thousand and eightstarting to crop up. Specifically around this
battle. There was a small chainin San Diego called Golden Spoon, same
kind of story. The CEO donatedprivately. I think it was something even
more absurd, like two hundred dollarsright to the Prop eight campaign. There

(07:53):
was a boycott of that ice creamchain, right And in that case,
I think they just suffered that thebusiness as a whole took the hit because
it was and maybe we can getinto this. It was like a single
proprietor who had a small chain.It wasn't like a publicly traded company.
But there were sort of these rumblings, and I remember having these discussions at

(08:15):
the time because I mean, obviouslyI didn't like some of these tactics,
but I had a much more libertarianresponse, like, you can't force people
to work with or associate with peoplewith whom they find, you know,
their views, that they find thoseviews abhorrent. They don't, you know,
we have a right to fire,you know, Mozilla has a right
to fire at CEO. And mydad and my parents came from a communist

(08:39):
country, i should say, andmy dad had a very different reaction to
this and immediately sort of picked itout as something that's incompatible with the continuation
of a free society, and thateven though on paper this wasn't like this
not a First Amendment violation, it'snot a free speech violation, he sort
of recognized it immediately as something thatwould chill speech to the extent that it

(09:03):
would be extremely difficult to operate sortof free speech democratic, small de democratic
society. And so he saw itimmediately as sort of a red, red
beacon of tyranny of a certain typecoming over the horizon. I thought that
was interesting, like, given hisbackground in mine, growing up in America,
that I sort of immediately put thisin the framework of, well,

(09:26):
everybody has the right to do this, and now I definitely you know,
I guess as you get older,you see more and more in these incidents
where you say my parents were right. But it's it's clear that this,
this kind of framework for what wenow call cancelation, has incredibly impacted our
ability to speak freely, to theextent that sixty five up to seventy percent

(09:50):
of Americans and surveys say that theyself censor. So given all of that
background, I mean, how howdid you you think about this? You
say you picked it out. Therewere a couple of people, I want
to just give credit. There werea couple of people. When I was
going back and reading about this,I didn't remember it being a big thing.
But Dennis Prager, the talk showhost, you know, he hosted

(10:11):
a whole show on this, saying, if you know, if there's no
boycott response from the right and fromreligious people on this, that we are
going to lose the ability to sortof freely discuss things. Robbie George Robbery
P. George wrote an article inFirst Things about this. So some people
and apparently you did recognize this earlyas what it was, But how did

(10:35):
you think about the problem in termsof putting it into buckets that we now
think about right, First Amendment buckets, free speech, freedom of association,
public accommodations, employment law, Like, how did you recognize this as something
new and how did you attempt orstart to put it into the sort of
structure of rights that we take forgranted or did take for granted in America,

(11:00):
And obviously understand and was a sympatheticto the libertarian view right in the
sense of sort of, this isn'tgovernment coercion, right, it's private activity.
But two things sort of were inthe background here that I thought very

(11:22):
much, thinking very much like yourparents, which is that there are habits
of a free society that go beyondsort of what is legal or what is
illegal. Right, And it wasalready pretty clear to me at that point
that one of the habits of afree society that's necessary as toleration. And
already by twenty fourteen you're slipping fromthis line from tolerating everybody should expect to

(11:46):
tolerate things that they don't approve of, to the idea that you must affirmatively
approve of things. Right to havean affirmative obligation to endorse certain good principles
in that sort of thing. Andthe left at that point was already starting
to use these boycott type type activitiesas far I call rush Limbaugh boy talking

(12:07):
you, boycotting advertisers, all thissort of stuff. So we saw this
this going on. But one ofthe other things about the free society is
that most of the free society needsto not be political. When you show
up at work, you should beallowed to do your job without being political.
A lot of nonprofit you know,the things you do in your your

(12:28):
free time, and that sort ofthing. And I kind of had this
in the back of my head was, you know, we live in their
system of democratic capitalism, and whatthat means is that you need to be
able to participate in the democratic processwithout losing your job, and you need
to be able to go and doyour job without being forced to endorse particular

(12:50):
political systems. And it requires afacility to distinguish what is an appropriate role
for democracy and politics and what isappropriate role for people to be able to
earn a living. And I believeit was Milton Friedman way back in Capitalism
and Freedom who said one of theone of the glorious things about capitalism One
of the glorious things about the freesociety is you don't care whether the person

(13:13):
who grows your grain is a Muslim, a Jew, or a Protestant.
Right, what you want is toengage with somebody on the terms that they're
offering of high quality products at alow price and a competitive, competitive market.
And I immediately saw that this wasemerging of these things. Right that
to say you've got to take certainwoke positions on political issues fundamentally is no

(13:37):
different from saying you can't you know, you can't be you know, a
Jew and open your business here,or you must endorse Christian values in order
to be you know, somebody thatI will work for, and that sort
of thing. And you know,against the backdrop of the twentieth century,

(13:58):
it was clear, I mean,you know, then the alarm bells went
off immediately my head, much likeyour parents, which is this this merging
of politics with the private sphere ofyou know, sort of voluntary organizations,
civil society organizations in the market wasa very alarming sort of sort of thing.

(14:18):
And this was a big ramping upof that of that that question.
The other thing that struck me verymuch at the time is is it said
in the problem this is not astable equilibrium. Right. There's the problem
with a lot of these things isthere's no logical stopping point, which is
you could say, well, youknow, well he the problem was he

(14:43):
donated to the anti same sex marriageinitiative, right, But why is that
going to know? Why couldn't yousay, well, he voted for it.
We're allowed to ask how did youvote on proposition eight? When you're
playing somebody right, if they votedagainst it, is that enough? Are
you allowed to say, well,you needed to vote for it, Well,
you have enough resources. Why didn'tyou donate too proposition eight as a

(15:07):
criteria for running this company? Right? And so once you move away from
toleration, and once you move awayfrom disconnecting those things, there's no logical
stopping point between saying you can't donateto proposition eight versus you must vote for
and publicly endorse this position even ifyou don't agree with it, as a

(15:28):
criteria for doing your job right.And that's very much where we have ended
up. Now, that's very muchwhere we have ended up where people must
affirmatively endorse positions and they demand thattheir corporations endorse particular political positions, and
so it was obvious to me fromthe beginning that there was no logical stopping

(15:50):
point between between those pollers opposites.Yeah, let's talk about stopping points,
because no, I mean, evenin a very free society like the United
States, let's say in nineteen eighty, there have always been views that have
been considered beyond the pale. Imean, the most obvious example I always

(16:14):
use is having a swastika tattooed onyour forehead has never been good for your
employment prospects in the United States.Right, that being said, there seems
like there are two questions on thestopping point, right, or two dimensions
of it. One is who decideswhat things are so fringe and offensive that

(16:36):
it, you know, like itdoesn't fall in that a political zone that
you were talking about. And thesecond point is, you know, whether
you're using your job to further thatview. Right, So, like here
I'll give the second. The oneexample on the one hand, was the
guy with the swastika tattoo on hisforehead. You know, perhaps a coffee

(16:56):
shop doesn't want to hire him becauseso many of their customers find that offensive
that they actually find they lose business. On the other hand, there's there's
Colin Kaepernick, right, who usedtime on the field as an athlete to
protest in a way that a lotof people and customers found offensive, right,

(17:17):
and the NFL put a stop tothat. And so I guess I
want to ask you all those twoquestions because there have always been limits even
in a society that we have,you know, protections, legal protections under
the First Amendment, for example,you know Nazi speech. But here we
have this instance, and I thinkit is both qualitatively and quantitatively different of
somebody who's first of all, notusing his views in the office. Right.

(17:42):
They actually had to leak this.This was not somebody who was going
into the office and talking about hispolitical views, and therefore the employees were
made uncomfortable. That's one line thatwas crossed here. And the second one
is Proposition eight passed in California rightto fifty two percent of the state voted

(18:02):
in favor of retaining the definition ofmarriage as one man and one woman.
At the time, this was notat all a fringe belief. In fact,
it was a majoritarian belief just afew years before this happened. And
so there's a question of who decideswhere that line is. And there's a
bit of a like sort of aclass question, and by that, I

(18:25):
don't even mean, you know,the rich versus the poor, But there
is sort of this influential academic professionalclass that is pulling away from the rest
of the country in terms of itsbeliefs at this time in twenty fourteen,
and in a really in the firstreal way, flexes that muscle that both
financial muscle and cultural muscle and says, Okay, we are declaring this belief,

(18:48):
despite it being incredibly common and perhapsmajority belief in the country, we
are declaring this belief beyond the pale. This is like being a Nazi,
and we're going to exclude these peoplefrom employment in public life. Yeah,
and uh. And that class hasbasically taken upon themselves to determine what is

(19:10):
the reasonable balance of acceptable opinion.And as we all know, that was
a position of Barack Obama at thattime, right until all of a sudden
became politically convenient to us switch orannounced what his actual position was. And
I think I think that you're thatyou're pressing on exactly the right lines as
and and traditionally what we've done issort of been able to count on people

(19:33):
to use sort of common sense andgood judgment to draw to draw these lines.
I think the private time versus onthe job time is incredibly important and
that's gotten mushed together over time,which is that people should be allowed to
participate in the democratic process on theirown time, on their own social media

(19:56):
accounts without that being h of whetheror not they're allowed to make a living
or not. You can't have ademocratic society unless people feel like they can
express their views without worrying about gettingfired, getting their bank accounts canceled,
like people do now in the like. It's just not you just can't have

(20:18):
a free society if you can't participateas a full democratic citizen on your private
time and not bring that into work. But what we've done now is we've
allowed people to We've we punish peoplefor what they do in their private activity,
and more and more people demand thatthey should be allowed to express their

(20:40):
political views at work, like ColinKaepernick or this recent case of the person
who wanted to wear a BLM badgeI think on their home depot apron right,
all these all these sorts of thingswhich I think it's reasonable to say
no, that's something you should doin your in your in your private time.
And so I think that lack ofnuance has kind of disappeared, that

(21:03):
line drawing, that pragmatic sort ofsense of self restraint and respect and toleration
for other people's views has been eroded, and it's become more and more subjective
as well. I recall when abunch of the bank CEOs testified before Congress,
I believe with Senator Toomey said tohim that they had all taken a

(21:26):
statement against the Georgia voting law.They had condemned it, and he said,
can you name one provision in thelaw that you object to? And
of course none of them could.They kind of looked at each other like
idiots and said, well, noneof us have read the law. And
finally one of them fessed up andsaid, well, some of our employees
felt disenfranchised by that law. Didn'tsay they were even living in Georgia,

(21:51):
right. These are employees at thesemultinational banks who quote felt disenfranchised. Even
though they couldn't say that they werefranchise, they had a feeling and that
was enough that the banks felt likethey should be uh required permitted extolled to
take a position on it, onthis purely subjective sort of notion that people

(22:14):
dreamed up in order to in orderto make this make this an issue.
And so you know, the finalthing I'll say about that is people can
always come up with the extreme examples, and we always understand that, right.
But here's the bottom line is whenyou look at sort of how the
left is weaponized these this cancel culturestuff in recent years, I would say

(22:36):
it begins with the Nazis, butit never ends with the Nazis. Right
to say, well, surely youcan't have the person wearing the uh,
the you know, the Nazi swastikaon their forehead or whatever. Right,
But then if you look at universities, for example, starts off with the
Nazis, then it becomes mirilely Uanopolisand and Coulter, and pretty soon you've

(23:00):
got George Will being canceled. Right. They're constantly sort of pushing the boundaries
in order to more and more drawon the fences as to what they see
as a permissible range of expressed opinion. And so to some extent, I
think you're if people can't be reliedon to have nuanced to have judgment to

(23:22):
think about where a reasonable line isto allow people to participate as democratic citizens,
but then at the same time restrainthem from acting out at work.
Unfortunately, then you start looking atprohibitions, all or nothing rules, all
these sorts of restraints, which makesus, I think, all less free.

(23:45):
But it results from a lack ofcharacter and judgment and prudence on how
we act towards each other on avoluntary basis. Yeah, let's talk about
some of those one instruments that atleast I know for my own path,
like I have had to reconsider rightthe necessity for example, and one very

(24:11):
dense you know, part of theUS Code is all kinds of employment protections,
and in particular all kinds of antidiscrimination employment protections. You cannot be
fired for any number of reasons inAmerica. Right, there's a long list
of protected characteristics. One of thosecharacteristics is not, at least on the
federal level, you know, politicalorientation or belief. Is this something that

(24:37):
I mean, we should be considering. Obviously, as you said, it
does in some sense make us lessfree, in the same way that public
accommodations in the Civil Rights Act restrictsfreedom of association. It restricts businesses from
choosing who they do and do notwant to work with and hire and serve
as customers on certain bases. Shouldwe be considering, you know, do

(24:57):
we want to live in a worldwhere we have employment protections for all characteristics
except diversity of thought. Yeah,I mean, I think we do need
to be having those discussions, ifyou know, if if employer. You
know, one of the big problemsherez was when Mozilla did this, A

(25:22):
lot of what was going on atthe time was it was just a free
pass. You know, there wasa decade for which woke corporate activity was
essentially a free pass for the corporations. Uh. And you mentioned Dennis Prager
other mentioned at the time that maybewe should like boycott these people, maybe
we need to to strike back,and for a variety of reasons, you

(25:45):
know, conservatives didn't respond to thatand that sort of thing. And so
all that did was embolden that rightand embolded the activists and embolden the employees
and emboldened the corporations. And sothey just thought this was this was an
easy pr victory. He said eventually, right that they were getting it from
one side universities have gone through thesame thing, right where they've gotten activist

(26:06):
for decades from one side and theyapply blatantly clear double standards which have become
you know, quite clear over thepast several months, because when they get
pressure from one side and not theother side, then especially if they're sympathetic
to that size, then they thenthey just cave to that, to that

(26:26):
right. And now they're starting toget it from both sides. They're starting
to get it in a tit fortat sort of way from activist Conservative activists
asked bud Light how whether they thinkthis is still a free pass or target
whether they think this is still afree pass, because now what you're doing
is starting to see more activity andso and so you know where we're at

(26:49):
now, is this tit for tatworld where it seems like the only way
to get these corporations to stop thisis boycott after boycott, reciprocal boycotts,
right, which I don't think that'sI don't think that's a very nice way
of doing this. I don't thinkthat's very compatible with a free society in
that sort of thing. And soto some extent, I think starting to

(27:11):
think about things like tying their ownhands, like saying, we're not going
to fire people based on their politicalbeliefs, so we're not going to take
away people's bank accounts based on theirpolitical beliefs. I think the corporation should
want that at this point, becausethey're kind of in a no win situation.
But even if they don't want it, I think it's time to start

(27:32):
thinking about whether that needs to berequired of them when it is very clear
that they're not interested in applying thesestandards in a uniform or even handed way
based on different political beliefs and thelike. Well, if we're going to,
you know, sort of wade intothose waters, we're going to have
to consider who has, for someamendment rights right, who has the ability

(27:59):
to speak, and what entities havethe ability to speak because and here there's
another spectrum that I'd like to introduceto you. It is something that I
think we're going to have to bothin. I expect that the Supreme Court
will have to weigh through this inthe next you know, five to ten
years, but then us as asociety also going to have to weigh through
this because we're not just now talkingabout employment. A lot of the examples

(28:22):
you're giving are actually from the customerside, right, discrimination against an entire
class of customers, and often that'sbecause of a type of market power.
Right. If we think about thesmall case, If we think about,
for example, the Christian baker whodoesn't want to make a cake for a
gay wedding, Obviously that's not againstthe customer. It's against a particular expression,

(28:45):
refusing to do a particular expression.But leave that distinction aside for a
moment. In that case, thereare you know, probably on the same
block, there's another baker who iswilling to perform that service for the customer
for the right price. Right,So that's an individual proprietor. When you
start to talk about for example,Amazon web hosting services, they have such

(29:10):
a large market share or at minimumthe other companies that hold substantial market share
in whatever. Banks are a goodexample of this. Right. We have
had examples of debanking. The NRAhas difficulty placing their money because a lot
of banks don't want to hold theirbank account, which has millions of dollars
and you would think banks would liketo hold. There are other examples of

(29:33):
that. Even if there are manyactors in a market and we don't think
of it as traditional anti trust problemor monopoly problem. If everybody agrees on
those same boundaries that we were talkingabout earlier, right, if everybody agrees
that Brandon Ike is beyond the payo, even though he's smack in the middle
of the American political spectrum on thisparticular issue, then you have a situation

(30:00):
in which the customer or the employeewho's fired has a very little recourse to
the quote unquote free market. Right, he can't go. It's not just
Mozilla today that is unwilling to hiresomeone like Brandon Ike. It's virtually all
of the tech world. So ifyou have particular skills, right, So
there's this this sort of collective marketproblem that isn't being solved by say what

(30:26):
Milton Friedman in the book you cited, would hope, right, would solve
it that the natural self interest ofone company to want to serve the customer
that's being booted from the other one. If we are going to go down
this road, you know, howdo we deal with who has these First

(30:47):
Amendment or these freedom of speech rights? Because we have large corporations that are
saying, well, it's it's ourexpression that we don't want to work with
anybody that's saying something about us thatwe don't want to say. And we
as a unit, as a publiclytraded corporation, we have First Amendment rights

(31:08):
not to interact with this class ofcustomer or not to hire this class of
employee. So you know who hasthese rights and how do we balance those
kinds of things in the public square. The rights quote unquote of the corporation
to say what it wants to say, but be a business, and the
right of the individual that's necessary indemocracy to be able to participate, as

(31:30):
you say, in a political systemthat requires people, at least when they're
not on the clock, right tobe able to express their opinions freely.
Yeah, there's a lot there,and I think you're hitting on the really
salient issues. And another way ofreframing it, right is I think about
the Civil Rights Act, and youknow a lot of libertarians over time have

(31:55):
said, well, they you know, they post the Civil Rights Act as
it required businesses to deal with withpeople who they didn't want to deal with.
Right, it's the same thing asyou know people who are making the
argument today, And I think apretty reasonable argument could be made that whatever
freedom means in some net sense,that expands The Civil Rights Act expanded freedom,

(32:22):
right to allow blacks to be ableto travel and be able to get
hotel rooms and that sort of thing. Yeah, that was a restriction on
the freedom of racist hoteliers, right, often backed by strong community sanctions,
even if not the government. Right, it's not like they were going to
offer hotel rooms, you know,when the clan would then come and burn

(32:44):
crosses on their front yard or boycotttheir businesses and that sort of thing.
So to say you have to acceptblack customers, I think a pretty strong
case could be made. They saythat on net that expanded freedom. However,
that term is defined in United Statessociety, and so I think we're

(33:07):
pressing on a lot of the sameissues here. If you feel like you
cannot participate fully as a citizen inthe democratic process because it is going to
mean you're going to lose your job, you're going to lose your bank account,
all these sorts of things, thenyou are not free. And as

(33:28):
you said, you mentioned Silicon Valley. If you want to be in Silicon
Valley, basically these are the positionsyou have to hold. Right. I'm
an academic so I really understand theway in which there are a clear political
litmus test, and I don't thinkanybody can seriously dollt it at this point
that there are clear political litmus testson people's ability to get higher promoted,

(33:49):
to succeed in higher education. AndI felt this, you know, up
close and personal. During COVID.I had COVID. I taught in person
because I had had COVID, andI was told that I was safe.
The came around the vaccines. Myuniversity imposed a vaccine mandate and they did
not respect until I sued them.Natural immunity is an exemption to to the

(34:15):
COVID vaccine mandate. And I'll tellyou I woke up every day thinking that
my career as an academic might beover. Not just my career teaching at
George Mason, my career is anacademic because there's a limited number of jobs,
variety of demographic and other reasons whyI would not be at the top

(34:37):
of the top of that list.And so to say you can just go
get another job, like a lotof libertarians say, it's just not a
serious It's it's not a grown upserious reality about what the world is like.
You can create these little fictional modelsof the first best world where this
is the case, but it's notthe case when you invest your entire life
in a particular company. That makesa difference. Right If you've I've talked

(35:01):
to people who were members of themilitary, who's who were six months away
from their pension investing, and theywere basically going to have to decide where
they're gonna get vaccinated or not,right, And some said yes and some
said no because the financial penalty oflosing their pension would just be too huge.

(35:22):
Right, And so clearly there isa power relationship there. It's not
equal in every situation, but clearlyto say that there's just these frictionless employment
markets are just it's just silly.It's it's a it's a childish approach to
how the world actually operates. AndI think in terms of thinking about what

(35:45):
the threats are to freedom and howwe protect freedom, we need to take
the world as it is. We'renot in the world of the first best
of magic markets, but we're inthe world of the second best, where
there are power asymmetries, where thereare limits on your ability to move and
get another job or huge financial penaltiessuch as losing your pension if you leave

(36:07):
early from a job for something thathas nothing to do with your ability to
actually do the job. Yeah,and the sort of build it yourself answer,
right, which is the second halfof the go go find another job
equation. You know, sometimes itis possible. Although some of these structures
that we've been talking about, likeAmazon web hosting services or other, I

(36:30):
mean, we saw what happened toParlor. There were two basically market gatekeepers
for apps to the market, andboth of them decided, for similar political
reasons, to basically kill Parlor,and they succeeded in doing so. More
or less. I mean, Parlorstill exists, but it's nowhere near I
mean, it was a company thathad a huge growth potential and was gaining

(36:51):
you know, tons of users everyday because it wanted to introduce this free
speech model, and it was expectivelykilled by that. But I guess at
some point the larger worry is notonly is this extremely much more difficult than
it is in the frictionless model thatyou're talking about, but also that the
danger is that we lose that thatspace you were talking about when we initially

(37:14):
started talking this conversation, right,because we lose that a political space for
tolerance that makes us the largest,if you want to talk about these libertarian
terms, the largest free trade zonein the unit in the world is the
United States, where there have alwaysbeen vast disagreements about important things religion,

(37:34):
right, you know, very deeplyheld moral beliefs. But we have this
culture, this mercantile culture of separatinga little bit between business and private belief
and that, I mean the descriptionof what you're talking about, everybody,
change jobs, build it, buildit yourself, right, that starts to
look a lot like two different societies. Yeah, in a pulling apart.

(38:00):
And so people say, well,we can just have a red economy and
a blue economy. Right, that'snot the world that that's not that that's
not the ideal world to me.Right. The beauty of the United States
is this ability for every become Americansand everybody to be free and to respect
each other and to govern ourselves andthat sort of thing. And so I'm

(38:22):
very troubled by that by that wholethat whole scenario, right, And a
better scenario would be one I thinkthat does have people developed the habits,
the character of being a free person, allowing people to disagree with them vote
differently in that sort of thing.Gave the example earlier of the baker,

(38:43):
right, who doesn't want to bakea cake for a same sex wedding,
and there's twenty other bakeries around,right, First, that person has no
power. Second, the question youhave to ask yourself is, you know,
in the past, what is theobsession with forcing that baker to to
relent? Right? What? Whywhy is it so important that you must

(39:04):
put your you know, sort ofput your boot on the neck of that
of that baker and make them cryfor pry uncle. Right. And so
that's not a very that I mean, that attitude that we must force people
to even if you know, justpurely for symbolic reasons. It's not like
there were no other cake bakers inthe town that they could go somewhere else

(39:28):
where they could find somebody who wouldgladly enthusiastically do it. Right, This
idea that you must force people tochoose, and it's this idea of you
know, silence is violence is theidea on the left. And you know,
when I don't understand why conservatives orlibertarians or whatever pretend like the left

(39:49):
doesn't say the things they don't say. When they say silence and violence,
they mean it, which is you'renot you must choose a side that's their
view, right. That was whatI understood with Brent then Ike, which
is it's not enough to just votefor against Proposition eight. You must be
a positively and you know, publiclyin favor of what we expect you to
do, because if you're not,then you're against us. If you're not

(40:12):
for us, you're against us.And that attitude is the exact antithesis of
what you were saying in terms ofa lack of tolerance, a lack of
allowing people to have different opinions,which is the underlying, you know nature,
the essential essence of a democratic system, and the essential logic, as

(40:32):
you said, of the First Amendment, of toleration of different religions, toleration
of different speech. And we allknow the kind of friction that you can
get in when people fight over religion, and nowadays you know the way people
use speech, especially on the left. It's basically a form of religious zelotry
that I don't think is that muchdifferent from what we've seen in the past,

(40:54):
and not that much different in termsof the implications for societal divisiveness,
Like, yeah, given the choicebetween you know, the state taking a
more active role and essentially forcing usto do business together, whether that looks
like antidiscrimination law, whether that lookslike you know, starting to look at

(41:15):
who exactly has what entities actually shouldor can exercise free speech or expressive rights.
Those both seem to me to bea preferable, preferable solution than developing
totally separate societies. But at thispoint, I'd like to remind everybody listening
if you have questions, I amkeeping track of the Q and a tab.

(41:36):
I'll get to that real soon atthe end of the discussion. Try
to ask your questions of the professor, So please do put questions in that
Q and a tab if you havethem. And to wrap it up for
my questions, I wanted to askyou whether you think the greatest threat to
freedom in the landscape that we livein today, given all that we've discussed

(41:58):
and we live in a post Brandonworld, the greatest threat to freedom as
we understand it, not narrowly tailoredin the courtroom, but as we have
understand it understood it as a people, as Americans is most under threat from
the government, from the private sector, or from some combination as we've seen,

(42:21):
you know, the sort of unholyalliance we've seen in the COVID case
that you're you're bringing up the vaccinemandates, but also in some of these
NCLA cases, we've seen emails goingback and forth that in a lot of
times, functionally these are the samepeople going in and out with the same
views, rotating in and out ofgovernment agencies and top corporations. So where
do you see the threat most comingfor traditional American freedoms? Like, where

(42:45):
do you see that being most dangeroustoday? And reminds me you talked about
your parents, And I had afriend who passed away a couple of years
ago, a great professor, StevePeyevich, who grew up in Yugoslavia UH
and managed to live under both theNazis and the Communists UH, and he
once observed the difference in the Nazisand the Communists was that the Nazis wanted

(43:07):
your obedience and the Communists wanted yourheart and mind, which is, the
Communists wanted you to to obey,not because you felt forced to obey,
but because you wanted uh to tomerge yourself into uh, into the to
the mass, right. And sothat was, you know, one of

(43:27):
the reasons why, you know,we saw the kind of way in which
communism, you know, infected everyaspect of society, from your workplace to
the young pioneer sort of corrupting theuh uh civil society institutions to the family,
sort of everything being politicized, uhin a way of sort of shaping

(43:51):
people's uh character. And so that'sI mean, this this merging then,
this merging of government power with privatepower, the social milieu, the you
know, in the like I thinkas part of that, I think the
other thing that I observe now isthat there is this sense in which it

(44:12):
just wears people down. That therelentlessness of the political sort of pushing right,
the constantly in your face sort ofthing about it in terms of every
consumption decision, every in the workplace, you know, all this sort of
sort of stuff. I think alot of people just essentially just say enough,

(44:37):
right, And there are people whowill keep fighting back and sometimes they
end up getting canceled, right.But a lot of people, I think
just basically feel worn out by itand so they just relent, they just
keep their mouths shut. And Ithink that's a very dangerous, dangerous situation

(44:57):
that at least at this point,they're kind of conforming externally, even if
they're kind of keeping their views tothemselves and just kind of trying to get
through to the end of time untilthey retire. But we see this,
I think, sort of slowly butsurely eroding the underlying fabric of a free
society. In the notions of tolerancethat we were talking about, yeah,

(45:22):
I mean, I think a lotof people think about censorship in the Soviet
Union, which we all recognize asa tyrannical society, as stalinism, right,
sort of high stalinism, people goingto the Gulag for minor deviations from
the party line. The reality ofmost of the Soviet Union wasn't that.
I mean, it was more likesomething that is recognizable to us today,

(45:47):
which is you couldn't get the associationcard to practice your profession because the party
wouldn't recommend you for it because itwas rumored that you held certain you know,
anti socialists of beliefs. And toyour point, if you construct a
society on the basis that everybody isa sol John needs in. You're not
going to get very far with afree society. But perhaps we are both

(46:12):
too dour about this, so Ithink this is a former classmate of mine
from law school. Jack asks howmuch of the left success and the cancelation
market is cowardice on the part ofelites quote on our side, who desperate
for the approval of their counterparts onthe left, kowtow to every woke demand.
If that's part of the problem,shouldn't part of the solution be for
ordinary people to exert their market powerto demand better, better elites who will

(46:36):
stand up for them and not justsomewhat more protective laws. Are we giving
short shrift to the power of essentiallyyou know, should we expect maybe not
people to be sol John needs Inand lose their jobs, But should we
expect people to be willing to standup to the opprobrium of the New York
Times crowd and be excluded from cocktailparties. That doesn't seem like too high

(46:59):
an enormous boar to ask for peoplefor the maintenance of a free society.
Yeah, and I'll, i'll andI'll just say I mean it was no
fun. Soon my employer over theCOVID vaccine. And I did not have
a until Glenn young The day GlennYoungkin was inaugurated in banded vaccine mandates in

(47:19):
Virginia, I did not have agood I did not have a good night's
sleep for a very long time upuntil till the people Virginia elected Glenn Yunk
and he banned vaccine mandates for forstate employees. So so, you know,
and I could have maybe just quietlygotten an exemption or something rather than
suing. So why did I doit? Now, I'll just confess I

(47:40):
felt like I had to. Andone of the things I learned from that
experience is why did I have to? Because there is a sense in which
we kind of mock the left's,you know, idea of privilege. But
but I do feel like I'm somebodywho's in a privileged position in some sense.
I'm an academic, I have tenure, I have the ability to synthesize

(48:02):
information and make arguments and that sortof thing. And I many ways did
feel like I had to step upbecause of the role I had and give
voice to all the people who Icouldn't give voice to to stand against the
wind right and luckily I teach atScalia Law School, which is a very

(48:22):
unique law school. I treasure mycolleagues and their courage and their independence,
and you know, they respected whatI was doing, even if they didn't
agree with me. They understood thatI had good reasons for I was doing
it, you know. And that'sthe reason I teach there rather than other
law schools, is because I valuethe environment that we have at that law

(48:45):
school. So I think, toJack's point, I think it is incumbent
on elites, to conservative elites,to do more that if we have power,
if we have some degree of privilege, I think we owe it,
if we believe in the free society, to do something about it. And

(49:08):
I think, you know, oneof the and I didn't do it for
this reason, but I was unbelievablygratified and touched by the hundreds of emails
I got from people, you know, from a cook in New York City
who was thought he was going tolose his job over New York City's vaccine
mandate, to nurses who you know, served on the front lines of COVID,

(49:30):
to teachers who wanted to be intheir school teaching in person. All
these these sorts of things. Butall the people who who expressed that to
me because they just didn't have thekind of power that I have. And
so I think there is a needfor those who can have courage to have
courage and not just go along togo, get along, to go along.

(49:52):
Yeah, and especially I think weneed to be smarter about it in
terms of elite exercise that kind ofelite power. I mean, I think
associations in the academic world sort ofNATO Article five type associations. I think
Professor George is the one who cameup with that kind of idea, but
basically to connect headerdox academics so thatyou know, you have a kind of

(50:16):
collective power. That's one idea.I really like Judge Hose exhortations the federal
judiciary, and this is something wherewe have obviously exercised political power. By
we, I mean moderate and right. We have plenty of appointees in the
in the judicial system. If theywere to refuse to hire clerks from Yale

(50:37):
Law School because of that school's attitudetowards freedom of speech right, that would
would have a substantial effect. Ithink its yeah, I mean, it's
like, does anybody think that StanfordLaw School would have come out and support
a free speech but for the factafter the Kyle Duncan incident, but for
the fact that they got added tothe list of course not right, uh

(51:01):
insae with yeah, right now,all of a sudden they're making noises about
being in favor of free speech andthe like. And so I think that's
an excellent example as of situations inwhich using your power matters. And to
some extent, you know, whenI heard what Judge ho was doing,
it's like, people say, well, this isn't right. You shouldn't punish

(51:21):
these innocent people for this, Andit's like, my response is, either
you believe in free speech or youdon't, and either you believe that this
is good or bad for the countrywhat these universities are doing. And if
this isn't your solution, what isyour solution? Because if conservatives have a
strategy for dealing with cancel culture,I'm not aware of it. If there

(51:43):
is a strategy, it's a prettybad one because it doesn't seem to have
been working very well for the pastdecades. So in some sense, like
you're saying, let's actually, ifit's a problem, let's try to do
something about it, and yes therewill be unintended consequences. Yes, we
need to be careful about how wedo it. But what we've been doing
since, you know, for thepast ten years didn't work. And the

(52:05):
other thing that seems to have workedis, like you're saying with Judge Hoe
and Judge Branch, the bud lightboycott, Right, there are certain things
where kind of using the power thatconservatives have. And I don't want to
get into a tit for tat game, right, That's not my ideal situation
here, but it but tit fortat in a game theory logic, and
I'm an economist, is to bringus back to a cooperative equilibrium. That's

(52:30):
where I would like to be.I would like to be in a world
in which everything isn't politicized all thetime, where most of our lives are
a political and we can just haveour friends, and we can go to
our pta meetings, and we couldgo to work and you know, I
don't have to worry about politics beingin our face all the time. Yeah,
maybe we're relying on the wrong ColdWar comparisons. We should be looking

(52:52):
to mutually assured destruction. I wantto combine two anonymous questions about employment non
discrimination law, which we discussed UHas a possible solution for some of this,
and one person points out in Californiathere is protection for adverse employment action

(53:12):
due to the employees' political beliefs oractivities. Why and I don't know the
answer to this question. Why wasn'tthat effective for Brandon? I I don't
know if. And then two,I mean, it doesn't seem like it's
been effective overall in California. Soperhaps that's something we should consider if we
are going to think about expanding antidiscriminationprovisions to belief you know, as this

(53:34):
worked. That's a that's a greatquestion, and I've not dug into the
details of how this actually plays out, but I do want to say two
things right, Which is first isany time you do trigger government activity or
new regulation or new laws, you'regonna both intended and unintended consequences, and
so we need to be aware ofthat. Right, that does mean that

(53:59):
there's going to be both. Ithink one argument that is often overstated is,
well, if we give this powerto conservatives, won't the left to
be able to use the power themselves. I think that's just not a very
in my view, a weighty argument. And the reason is it's not like
leftist politicians or activists or companies arejust sitting a lot round waiting for authority

(54:22):
to to be able to do thethings that they're doing. They're just doing
it, right, They're they're notasking for permission, they're just doing it.
And you mentioned the uh, theuh, the net choice I'm sorry,
the Murphy case and the censorship ofsocial media, right, uh,
which is they were just doing it. They were going right up to the
line, maybe over lined. Theyknew where the line was. The government

(54:43):
can't do this. So we're gonnado this, this, this, and
this to get to what we wantto do. Doing the same thing with
banking, We're gonna do this,this, this, and this. Right,
We're not gonna you know, uh, is just as much power as
we can see if we can uh, we can get away with it.
Right. So, so it's notlike I think that the unintended consequence of
oh, the left will be ableto use this is that much of a
difference, because they might be ableto do a little bit more than they're

(55:06):
doing now, but they're doing itall already, And so I think that's
an important point in terms of intendedand unintended consequences. But you do have
the issue with employment law and thelike, which is that if you do
bring a suit, if you dobring in action, right, then you
do have this problem of it's kindof on your record, right that you're

(55:31):
kind of person who sues over alot of this. And you know,
if you're a conservative in Silicon Valleyor that sort of thing, and you
still want to be able to geta job in tech, are you really
going into is the path of leastresistance to try to sue and try to
prove one of these cases, orto just try to scramble and and find

(55:53):
something else or something like that.And so you know, again, as
you're saying, it's not all aboutthe legal remedies, right, there is
this social structure behind it that peoplestill have to overcome in order to be
able to operationalize and use these usethese legal rights that they have. So

(56:15):
what about corporate structure? So wehave a question about shareholder power. Do
shareholders have some kind of remedy againstthe hijacking of a company by activist management?
You can ask the reverse question,what remedies does a company have against
activist shareholders, right, because I'veseen politics being introduced by both sides of
that equation. And then there's aquestion from a vidego as well about who

(56:39):
first amendments Touching on some of thequestions that we did discuss, like who
should have First Amendment rights, whatorganizations and structures corporate structures should we attached
First Endment rights to? Should webe considering Mitt Romney's dictum that corporations are
people, right, So kind ofwhat do you see within the actual structure

(57:00):
of corporations that is either making thisproblem worse or potentially might provide a remedy
for it. Yeah, uh there, And obviously you could bring shareholder actions,
you know that that sort of thing. One of the things that's tricky
with that is it's really hard todraw a direct line between sort of you

(57:23):
know, everybody says go woke,go broke, but it's really hard to
draw that line for a variety ofreasons. There's a lot of things that
affect corporate profitability and shareholders. Tryingto do that is tricky, and if
you look at the empirical evidence onESG, for example, there's very little
evidence that sort of ESG systematically reducesshareholder returns or anything like that, or

(57:45):
the evidence is at least very mixedon that. But here's how I've come
to think of it as is.And libertarians are very guilty of this.
Libertarians sick of this is sort ofall through the lens of economics, right.
But they'll so they'll say, like, you know, the Twitter thing,
that sort of thing is, oh, well, you know, eventually
we'll be market entry in five orten years, and you know, maybe

(58:07):
these monopolies eventually break down. AndI'm perfectly willing to say that that seems
like pretty solid economics. But that'snot what the harm is right to focus
on. You know. It's kindof like one of these things of the
hammer and the nail. Right whenit's a if it's a corporation, everybody
thinks that like shareholder rights are theright way to confront these issues, and

(58:29):
that's not obviously correct. Me.I think it could be part of it.
The problem here, I think,is not a problem of corporate governance
in ERLD. It's a it's aproblem of democracy. It's a problem of
corporations acting in a democratic way.And so the way I talk about it
is The way I think about itis that there are these spillover effects on

(58:51):
society and on freedom in on thedemocratic world that are not just economics.
If you can't anticipate as a citizenin the democratic process in a full way
because you are afraid of economic warfareagainst you, then that's not just an
economic question. And that's the pointI think people need to think about.

(59:14):
Right, Yeah, maybe in tenyears you know, as you said,
build your own Twitter. They builttheir own Twitter. That was called parlor,
right, So now you've got tobuild your own Internet essentially, just
so you can build your own Twitter. And maybe that could be done someday,
but it's going to take a longtime. In the meantime, what
is going to impact on the democraticprocess, What is going to be the
impact on people's ability to speak inhere, opinions in the world. All

(59:37):
those sorts of things are not economicquestions. And I think the questions we
have here about employment are not economicquestions. There are questions of democracy,
there are questions of freedom in thelike, and I think sort of,
yes, you can use shareholder governanceto the extent you can, but that

(59:58):
I think is a very very indirectand not obviously effectual way of getting what
we're really concerned about, which ispeople being able to speak their minds as
democratic citizens without risking their livelihoods.Yeah, that's about does it for us.
I'm sorry for the questions that Icouldn't answer bring up. There were

(01:00:21):
so many great questions. One personbrought up forty two USC nineteen eighty five
case based on pressure on a bank. I don't even know what that's about.
I'd be really interested to learn morequestions about what's happening across the pond
with regard to free speech and genderideology. Lots of great questions. So
sorry I couldn't get to everybody's questions, but just just to sort of put
a pin on this discussion. AndI think Professor Zoeki has done an incredible

(01:00:45):
job in that last several paragraphs ofsaying that there is this fundamental problem here
that economics doesn't really address and thata libertarian framework doesn't really address and doesn't
recognize is sort of as the worldaround us. And I want to briefly
read something from Irving Crystal the Senior, a fantastic speech he gave in nineteen

(01:01:08):
seventy two. Two Milton Friedman's Ithink it's the Pearlman society. I'm probably
messing that up because I'm not assteep in libertarian law as many. But
I think he raises questions, evenall the way back in nineteen seventy two,
that are at the heart of thediscussion that we've just had, which
is he assumes that these sorry,what if the self that is realized under

(01:01:32):
the conditions of liberal capitalism is aself that despises liberal capitalism and uses its
liberty to subvert and abolish a freesociety. To this question, Hayak and
Friedman have no answer, And yetthis is the question we now confront as
our society relentlessly breeds more and moresuch selves. Perhaps one can say that
the secular libertarian tradition of capitalism,when it has too limited imagination when it

(01:01:53):
comes to vice, it could neverreally believe that vice, unconstrained by religion,
morality, and law, might leadto viciousness. It never could really
believe that the self destructive nihilism wasan authentic and permanent possibility that any society
had to guard against. It couldrefute Marx effectively, but never thought it
would be called upon to refute theMarquis de Sade. I think this is

(01:02:16):
just very much something that's confronting allof us on the right as we consider
these questions, as we consider,oh my goodness, the possibility that we
might need to use the state tostep in and protect some of the space
for a political business, the spacefor the traditional liberties that we hold dear

(01:02:37):
and that are the tradition, ourtradition as a people. Sort of confronting
the fact that the framework that manyof us were attached to in twenty fourteen
or two thousand and eight when BrandonIke was fired, sorry in twenty fourteen,
when he was fired in two thousandand eight, when we had these
discussions about gay marriage, that frameworkthat many of us, including me,
were attached to simply doesn't describe theworld in which we see ourselves interacting with

(01:03:04):
now as customers, as employers,as employees. So it's incumbentent us to
find a framework that actually does describethe world around us. So thank you
so much to everybody. I'm gonnaturn it over to Alda before we wrap
up here, but thank you somuch for joining this this webinar. Thank
you so much on behalf of theFederalist Society. I want to thank both

(01:03:28):
of our speakers today, Todd andAnenez, for a fascinating conversation, and
I also want to thank our audiencefor joining and participating and offering some great
questions. Please join us again thiscoming Tuesday at noon for a webinar on

(01:03:49):
net choice, Murphy and the speechand coercion questions in the digital age.
We welcome listener feedback by email atinfo at FEDSOC or Thank you so much
for joining us today. We areadjourned