OPINION - Corporations are now a threat to free speech like the mighty state

Merseyside Police faced criticism after using the slogan "Being offensive is an offence” to promote their stance on hate crime (Deadline News)
Merseyside Police faced criticism after using the slogan "Being offensive is an offence” to promote their stance on hate crime (Deadline News)

Over the last few years, large corporations have come to exert enormous power over the ability of citizens to speak their minds. Working-class people have been fired from their jobs because social media mobs wrongly accused them of having extremist sympathies. Banks have dissolved the accounts of customers whose political views they found to be distasteful. Comedians who had long ago booked venues were told that they could not take the stage hours before their sold-out shows.

It is possible that even more draconian punishments could eventually face those who make themselves unpopular. If a bank can refuse to maintain your account on the basis of your political views, why couldn’t an airline decide to deny you boarding or a supermarket ban you from its premises for the same reason?

Debates about free speech often centre around the role of the state. There is good reason for that. States exercise enormous powers, and their willingness to jail people for offensive remarks is on the rise, especially in the United Kingdom. In 2021, for example, police officers in Merseyside posed in front of a giant billboard that read: “BEING OFFENSIVE IS AN OFFENCE”. But philosophers who care about free speech have always recognised that the ability to speak your mind can as easily be threatened by private actors. As John Stuart Mill wrote in On Liberty, society “practises a social tyranny more formidable than many kinds of political oppression, since though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself”.

Citizens who are fired or can no longer access basic financial services like credit cards usually have little or no recourse

There is also less of a check on the power of private actors. Citizens accused of violating state-sponsored restrictions on free speech at least have a chance to defend themselves in a court of law. By contrast, citizens who are fired or can no longer access basic financial services like credit cards usually have little or no recourse. Their fate hinges on anonymous people making decisions in accordance with rules and procedures that may not even be public.

Anybody who cares about upholding a genuine culture of free speech must therefore care about reining in the ability of private actors to punish people for expressing unpopular views or to police the boundaries of legitimate debate. Thankfully, governments can help to constrain private power without overstepping the strict limits on what they themselves can legitimately do in this realm.

The first step should be to ban companies from firing their employees for saying unpopular things. Governments could accomplish this by including the political views of employees in the list of protected characteristics, as some jurisdictions in the United States, such as Seattle, have already done.

Employers should be able to restrict what their staff do or say while they are on the job. But unless the nature of their work is openly political — as might, for example, be the case for a campaigning organisation — they should not be able to fire their employees for views they express in private. This would go a long way towards giving citizens the confidence to express themselves without fear of material ruin.

Second, financial institutions such as banks, credit card companies and online payment processing services effectively serve as public utilities. Anybody who wants to engage in basic commercial transactions, from renting a car to booking a flight, needs a credit card. Anybody who wants to earn income online needs to use a payment processing company. People who are barred from using these services would be unable to go about their daily lives, to travel freely, or to maintain a viable business. Therefore, these companies should — like other public utilities — be banned from declining to do business with would-be customers on political grounds. Though they must be allowed to refuse service to customers on commercial grounds, such as a persistent refusal to pay their bills, they should not be able to do so because they disapprove of their views.

One response to these concerns is to suggest that the victims of these sanctions deserve their fate. Many should be judged harshly for their actions. The content they spread may be hateful, and they might have committed the actions of which they stand accused.

But a key question about a regime of censorship, formal or informal, is always whether there is reason to believe that the would-be censors will consistently be on the side of the noble and truthful. The answer to that question is inevitably that there is no reason to trust that this will be the case.

Those who are in a position to censor are, almost by definition, privileged and powerful. To assume that they will stand on the side of the weak or the oppressed is deeply naïve. And for that reason, only a society that curtails the untrammeled power corporations enjoy over our public discourse and our livelihoods will be genuinely free.

Yascha Mounk is a German-American political scientist. His new book, The Identity Trap, is published by Penguin