History, Law, Top Stories

Inducing People’s Employers to Fire Them Should Be a Civil Wrong

If you aren’t from Australia or New Zealand you may be tempted to think of Anzac (Australian and New Zealand Army Corps) Day as simply a variation of Veteran’s Day or Remembrance Day—but for many Aussies (and Kiwis), it’s a little bit like Veteran’s Day combined with the Fourth of July or St. Patrick’s Day. It is a deeply patriotic holiday that many regard as a semi-sacred, particularly because we celebrate it on April 25 to mark the anniversary of the day in 1915 when Anzacs arrived on the shores of Gallipoli, Turkey to fight in a battle that would result in over ten thousand soldiers losing their lives. Like it or not, Anzac Day has become patriotic mythology.

To mark Anzac Day in 2015, Special Broadcasting Service (SBS) reporter Scott McIntyre took to Twitter and wrote: “Remembering the summary execution, widespread rape and theft committed by these ‘brave’ Anzacs in Egypt, Palestine and Japan.” To make matters worse, he also asked “if the poorly-read, largely white, nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered.” Then to round things off he added that Australia and its allies perpetrated the largest single-day “terrorist attacks in history” by dropping atomic bombs on Hiroshima & Nagasaki.

Happy Anzac Day, Australia.

Australian Prime Minister Malcolm Turnbull, who was Communications Minister at the time, tweeted back to McIntyre that his tweets were “despicable remarks which deserve to be condemned.”

Twitter interaction between former SBS presenter Scott McIntyre and the Prime Minister of Australia, Malcolm Turnbull


The following day the media reported that McIntyre had been sacked by SBS News although he later settled an action for unfair dismissal against the network.

Then in 2016 in what was dubbed a “witch hunt by conservative extremists,” La Trobe University temporarily stood down academic and LGBT anti-bullying advocate Roz Ward after she privately posted to Facebook a picture of a rainbow flag with the text: “Now we just need to get rid of the racist Australian flag on top of state parliament and get a red one up there and my work is done.” The reference to the “red one” was understood to refer to the socialist flag, as Ward is an active member of the Socialist Alternative. She was also the prominent co-founder of the “Safe Schools” program, designed to educate children about LGBT issues.

The backlash was swift but so was the defence of Ward by the National Tertiary Education Union (NTEU), who released a statement saying, “This NTEU branch stands firmly against such modern-day witch-hunts and calls on La Trobe University management to publicly state their support for Roz’s ongoing employment with Safe Schools Coalition.”

Yassmin Abdel-Magied also faced calls for her sacking from the national broadcaster after she posted on Facebook on Anzac Day 2017: “LEST. WE. FORGET. (Manus, Nauru, Syria, Palestine …).” (Manus and Nauru are Australia’s offshore asylum seeker processing centers). Abdel-Magied was not fired but instead the ABC program she hosted was axed.

But in Australia witch hunts are bipartisan. Conservative indignation for leftist ideas generates much the same treatment. In 2017, Dr. Pansy Lai appeared in a television advertisement for the ‘Coalition for Marriage’ calling for a vote against same-sex marriage. “When same-sex marriage passes as law overseas,” she said, “this type of program [the Safe Schools program] becomes widespread and compulsory.” Dr. Lai was threatened, and a petition was set up to demand that she be deregistered by the Australian Medical Association.

Earlier this year Australian rugby superstar Israel Folau wrote on his Instagram account that gay people would go to hell “unless they repent of their sins and turn to God.” He later published an anti-gay sermon on Twitter. This resulted in calls for him to leave Rugby Union, and speculation that Rugby Australia will not renew his contract.

Sometimes it’s clear to see why someone’s controversial comments have an impact on their employment. For example, the former Victoria police assistant commissioner resigned after it was revealed he had made racist and sexist comments online under a pseudonym, including about colleagues and the commissioner. Given that he was the head of the police’s ethical standards body, his own ethics and neutrality were clearly called into question. But often, the offensive conduct is private and has nothing to do with how people perform their job.

Should a doctor be able to practice medicine because she opposes same-sex marriage, or should a reporter be able to keep his job if he criticizes Australia’s military history on Anzac Day? It’s my guess that depending on their politics, many Australians would passionately say yes to one but no to the other. So no matter what our political position when we express controversial views, whether from the left or the right, we count on offense, backlash and calls to get that person sacked. When we enter the realm of controversy, both sides want retribution and one of the most damning things you can do to a person is take away their livelihood.

Pitchfork-wielding mobs have always existed, but never have they been able to form in a matter of minutes and get people fired within hours. The speed of outrage on the internet moves so quickly that we could tweet something at the breakfast table before heading out the door for work only to find that when we arrive we don’t have a job. Whether we like it or not we are all governed by this rapid-growth wrath and the possibility that expressing our honest opinions on social media could destroy our careers.

As a practicing lawyer, I’m interested in looking at how social media is changing our ideas of justice and tort law. We live in a time when the dialogue itself can be the severest punishment we can inflict.

When people attempt to resolve disputes on their own, lawyers call it self-help. Self-help is all that exists in societies which lack an overarching legal system to determine rights and duties. Examples of self-help include something as benign as cutting off the branches from your neighbor’s tree when they overhang on your fence. However, self-help may also include trespassing on private property, or even assaulting a person. It is for this reason that the eminent textbook author Percy H. Winfield observed, “self-help has always been reckoned as a perilous remedy owing to the stringent rules against its abuse.” In other words, when people take the law into their own hands, the courts only allow it if the conduct is reasonable and proportionate. At its worst, self-help leads to vendettas, public shaming, and mob-violence.

In societies lacking functioning legal systems, feuds founded on self-help can descend into vendettas. Jared Diamond in The World Until Yesterday: What Can We Learn from Traditional Societies? details his experiences in Papua New Guinea, where a driver named Malo accidentally strikes and kills a young boy named Billy. Diamond notes that in Papua New Guinea, drivers are allowed to flee the scene and head to the nearest police station because bystanders might drag them from their cars and beat them to death.

Adding to the tension in the incident Diamond describes, Malo and Billy were from different tribes and ethnic groups. In the event, the matter was resolved when Malo’s employer spoke to Billy’s father and offered to transfer food to Billy’s family, and gave a formal apology at Billy’s funeral. The first option with this kind of traditional justice is an attempt to achieve peace by compensation and negotiation, but if this doesn’t work, the second option is to seek personal retribution by violence, which tends to escalate into further retributive acts and then war. What is interesting about Diamond’s story is that the laws he describes are not an attempt to replace self-help but in fact work within the parameters of it.

While “an eye for an eye” may look bloodthirsty to us now, it was in fact an effort by ancient civilizations to forestall blood vendettas. In other words, the retributive response to an injury should be proportionate to the original injury, and the matter ends once proportionate retribution has been taken. Unlike Malo, the victims of a social media mobbing can’t flee. They can close their personal social media accounts, but they can’t stop people from calling, writing, emailing or campaigning against them. And we don’t have the capacity for peaceful negotiation in our modern global society, particularly when the mob is large, scattered and apt to expand exponentially.

My argument that social media campaigns are a form of self-help is at odds with the argument recently advanced by Bradley Campbell and Jason Manning in The Rise of Victimhood Culture. Campbell and Manning argue that social media campaigns to get people sacked are the opposite of self-help. This is because, unlike in the tribal Papua New Guinean context, they say that we have a comprehensive overarching governmental and legal system whereby we raise concerns with third parties to resolve disputes. Consequently, they assert that these situations involve “legal overdependency,” where rather than resolving their own disputes, people rely too heavily on an external third party.

Campbell and Manning deal specifically with disputes in the university context, where students bring claims of offensive behavior to university authorities rather than resolving them between themselves (which would be a form of self-help). They use the example of Nicholas and Erika Christakis, both of whom had to stand down as faculty-in-residence at Silliman College, Yale University, after students became offended by an email about Halloween costumes and then organized protests and petitions against the couple.

Nonetheless, there’s still a self-help aspect to these disputes. Typically, the third-party authority is afraid of the mob and accedes to the demands rather than making a decision based on principles of justice and the facts at hand. Decisions are not made based on the private law rights between the parties (what their employment contract states, or what wrong has been done). In fact, as Campbell and Manning outline, often these cases involve a startling lack of legal procedural protections.

Insofar as these decisions are said to represent legal decision-making, they don’t reflect the way law should operate in a liberal democracy. Every defendant is presumed innocent until proven guilty, all parties are accorded procedural fairness and entitled to know what accusations are made against them, and all defendants are entitled to a relevant legal defense. There is an absence of law here, particularly when it comes to social media and the quick retribution a social media mob can exact.

In fact, civil recourse theorists argue one of the aims of tort law is to prevent self-help as much as possible, particularly when it takes violent forms if people feel they’ve been wronged. Instead, courts vindicate the victim’s rights in a public forum. While social media inflames tensions, the law aims to remove emotion and passion from disputes. This was recognized by John Locke in his Second Treatise on Government, written in 1690:

…thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offenses which any member hath committed against the society, with such penalties as the law has established…

This is the way in which liberal civil society should be organized. We want our disputes to be resolved by impartial judges who do not take sides, who drain the emotion out of matters, because a society that uses self-help to resolve disagreements is a more dangerous and violent one.

Democracy is predicated upon the free exchange of ideas. You might say, “Ah, but that doesn’t include a right to be offensive, and to hurt others!” The difficulty is that “offense” is a subjective term, and what is offensive to one person may simply be a joke to another or have no impact at all. Occasionally during my teaching evaluations, a student will write comments indicating I’m a ginger-haired nerd. I’m not offended. I made peace with the fact that I have red hair, glasses, and a prodigious enthusiasm for academic topics.

In Campbell and Manning’s terms, my response is typical of a “dignity culture,” where the proper response to personal insults is to ignore them or rise above them. I may also have a touch of “honor culture,” where the proper response to a personal insult is to strike back physically, but I suppress that response as unworthy. I do not reflect “victimhood culture,” where a person’s status is predicated upon their ability to tick certain categories of disadvantage related to oppression and minority status (the more boxes ticked, the higher the status). I could fit into several disadvantaged boxes if I wanted to, but I have spent my life trying to overcome disadvantage, not being defined by it.

But I understand that it can be traumatic to be on the receiving end of online abuse aimed at having you sacked from your job. I’ve received it myself for expressing certain opinions in public, and I’ve recently seen others (both colleagues and friends) receive similar abuse. Entire topics are off-limits for public discussion for me because of the abuse I received in the past. After my experience, several people told me, “We think the same as you do, but we’d never say it publicly.” Goodness knows, many others may have similar doubts to me, but we’ll never know, and in the meantime social policy will be predicated upon a totally different set of assumptions.

Joseph Overton postulated that there was an ever-shifting window of ideas that are politically acceptable (the “Overton window”). I feel as if the Overton window of acceptable political ideas is shifting to polarized extremes, and views which I have long held (e.g., I prefer to judge people according to their conduct, not as members of the ethnic group to which they belong) may now be regarded as unacceptable on parts of both right and left.

In Private Truths, Public Lies: The Social Consequences of Preference Falsification, Timur Kuran explains why it’s less than ideal to have situations where there is widespread preference falsification—where people don’t say what they really think out of fear. First, widely disliked social structures may be preserved because no one is brave enough to say publicly that they, too, do not agree. Secondly, social structures which are predicated on false preferences are prone to sudden collapse once the majority realizes that no one else likes or believes in the particular thing which is being upheld. Finally, preference falsification distorts public opinion, public discourse, and human knowledge. If people cannot openly discuss their views, then certain views will not be explored or discussed, and the sum of human knowledge will be diminished.

Resentments may also fester in ways that are unhealthy, and which may erupt in unpredictable ways. And in the context of people being sacked for unpopular or offensive views or comments, employers will respond to those who make the most noise, regardless of whether the majority of consumers actually care about the issue. With all of this in mind, we need disincentives to stop a small group of aggressive people from policing other people’s opinions.

Moreover, it is important to recall basic labor law principles, and why it’s wrong to sack people for expressing political opinions that we do not like. Trade unions were the first to assert that workers should not be sacked because of their political beliefs or because of the people with whom they associated, and they continue to fulfill this role. My own union, the NTEU, rightly supported academic Roz Ward, mentioned at the outset of this piece as having caused offence by questioning the Australian flag. However, it is also standing up for Professor Peter Ridd, an academic who questioned the theory that the Great Barrier Reef is dying as a result of global warming. James Cook University sacked Ridd for alleged “serious misconduct,” but he is (again rightly, in my view) being supported by the NTEU, even though many union members would disagree with his position.

In this excellent post, UK labor lawyer Virginia Mantouvalou considers the broader issue of employees being sacked over social media posts, and notes there’s a legal inconsistency between protection of freedom of speech in the UK and rights against employers. She says:

The employer cannot police workers’ moral character, their political opinions or their preferences. The retention of someone’s job should not depend on the tabloid press and the effect of its (mis)reporting on employers’ reputation. At present, speech that is protected against state interference is not protected in the employment context against dismissal and other disciplinary action. This is disturbing.

Dismissal can be devastating for its effect on income, reputation, and social life, as the Strasbourg Court itself has recognized, and even on people’s health.

The last point is a really important one. Employment is the way people make a living, but it can also be important to one’s identity and social status. To lose one’s job, or even to be at risk of losing one’s job, is so devastating that it can lead to PTSD or even suicide. 

In an Australian context, an employer who sacked an employee would be subject to the Fair Work Act 2009. It’s worth noting that McIntyre—the reporter who was sacked for his offensive tweets on Anzac Day—brought an action in unfair dismissal under this legislation, but not all employees are able to take advantage of such laws, or even make it past the loss of a single pay check.

There’s another issue here, too. Why do employers not stand up for an employee in the face of mob pressure? My own theory is that it comes down to “corporate branding” and the way in which an individual’s “personal brand” is thought to mesh with the employer’s “corporate brand.” In other words, companies want to be perceived by the public in a certain way, and if individuals behave in a way that doesn’t match the brand, they must be disposed of before the brand is affected. This is even if the individual’s offensive comment is made in a private context and is not associated with their employment.

This strikes me as a form of market failure. Universities in particular should not operate according to corporate branding. A better indicator of the strength and health of a university is the extent to which it allows rigorous dissent and discussion, not in how it micromanages opinions expressed by staff.

I’ve talked above about the legal relationship between employer and employee, but what about the social media mob? This is a little more difficult. However, there are several tort doctrines which may be helpful. The first is defamation, which prohibits communication to third parties of false statements that injure the reputation of a person. Importantly, the defamatory statements are presumed to be untrue, and it is for the defendant to prove that they are in fact true (or “substantially true” in Australia). Unsurprisingly, social media defamation cases are on the rise, not only in Australia but around the world. Recently, a south Australian judge held a man liable not only for his Facebook posts, but also for the comments on those posts which brought a commercial rival into disrepute. Damages were were awarded for the loss of business which resulted. Consequently, if persons make or even just allow defamatory comments on social media which lead to a person getting sacked, they may be liable.

The other relevant tort doctrines are the economic torts prohibiting interference with contractual relations: inducing breach of contract, interference with contractual relationships, and conspiracy.

The history of these torts is odd, although it does show they’re long-lived and flexible. They arise from the action of per quod servitium amisit or “loss of services,” a common law action which arose in early medieval England. The feudal lord was held to own not only the services of his servants, but also the services of his wife. Injury to the wife therefore gave rise to damages for “loss of consortium.” The tort of inducing breach of contract was an offshoot of loss of services and arose in the wake of the Black Death after a third to one half of the population in Britain had died.

In response to the resultant labor shortage, the English Parliament passed the Ordinance of Labourers in 1349, followed by the Statute of Labourers in 1351. The Statute made it a crime to break an existing contract of service and attempted to fix wages at pre-plague rates. It was generally unsuccessful at achieving this aim and is thought to be one of the factors leading to the Peasant’s Revolt in 1381. The Statute allowed judges to discover a common law action preventing a servant from breaking a contract and moving to a new master.

14th-century rural scene of reeve directing serfs, from the Queen Mary Psalter

The modern tort of inducing breach of contract arose from the case of Lumley v. Gye, where Lumley (the manager of Her Majesty’s Theatre) sued Gye (the manager of Covent Garden Theatre) for inducing an opera singer, Johanna Wagner, to breach her contract to perform for Lumley in order to perform at his venue instead. The tort of inducing breach of contract later became notorious as it was part of the private law armory used by employers against trade unions, along with the contractual doctrine prohibiting restraint of trade, and the tort of conspiracy. Thus, in Taff Vale Railway Company v. Amalgamated Society of Railway Servants the tort of inducing breach of contract was used to hold unions liable for losses which companies suffered due to striking workers. All these doctrines were ameliorated by statute in due course.

Importantly, the longevity and flexibility of these torts are suggestive. The tort of inducing breach of contract is rarely used and as the brief history outlined above shows, it has generally been used by employers, either to prevent employees from working for a rival employer, or to prevent unions from encouraging members from refusing to work for certain organizations. However, it could be repurposed to protect employees, and to disincentivize social media mobs.

Could someone like Scott McIntyre take action against people who called for him to be stood down from SBS? His employment contract was clearly cancelled as a result of social media outrage, and certain public people were on record as saying his views were unacceptable (including Malcolm Turnbull). Damage flowed from the cancellation of the contract, although it is not clear whether the contract was in fact breached by his employer (I’m not aware of what the terms were). However, causation might be difficult to show.  There was a social media pile-on and thus it might be difficult to prove (a) which individuals made the call to sack the employee and (b) that the calls in fact caused the sacking. It might be a situation of a death by a thousand cuts, and it would be difficult to show exactly which cut caused the final demise, or whether the decision to terminate the contract was an independent decision by the broadcaster.

Secondly, defendants may try to argue justification, perhaps in terms of general societal norms against offensive conduct, or in terms of specific provisions in McIntyre’s contract (as noted above, we don’t know the terms).

However, if McIntyre could establish liability he could perhaps obtain an injunction restraining SBS from sacking him, or obtain damages from those who called for his sacking, reflecting the income and opportunity lost as a result of the cancellation of the contract, and perhaps aggravated damages for distress flowing from the cancellation. It is worth noting that courts in England, Australia and the U.S. would be less inclined to force SBS to rehire McIntyre in the event that the contract had already been terminated. Courts are reluctant to force people to work together once relations have broken down, although there is some Australian authority to the effect that the situation is different where an employee seeks an injunction against an employer.

Fundamentally, we have to stand against social media mobs who call for a person’s sacking simply because the person was offensive. Employers must make a measured decision on the basis of the legality of the situation. I’m not saying that a person can never be sacked on the basis of being offensive on social media (sometimes it is clearly right that a person is sacked), but I am saying that we should resist mobs and think about the position of the employee dispassionately. Private law may help us to challenge employers who buckle at the first sign of anger on social media; it encourages a measured view of disagreements.

We do not want a society where self-help becomes dominant, because in such a society, decisions are made in anger, and almost always result in some level of injustice. Moreover, it is bad for society if we cannot freely exchange ideas. Unfortunately, being open to different ideas means that sometimes you get offended.

When in legal practice and at law school, I was trained always to look at the other side’s argument and to take its merits seriously. This meant that I gained a better idea of the strengths and weaknesses of my own position. Sometimes it was unpleasant and uncomfortable to have my views challenged, but I grew and learned as a result, and sometimes I even listened and changed my mind.

This article represents the author’s views and not the views of her employer.

 

Dr. Katy Barnett is an associate professor of private law at Melbourne Law School, University of Melbourne. Follow her on Twitter @drkatybarnett.

62 Comments

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  5. Peter from Oz says

    Great article.
    As the authopr states the difference these days is that in the age of social medi it is so easy and quick to get a posse together to demand action against the heretic.
    W have yet come to terms with this spped and vehemence. So companies and governments mistake the small number of cyber cry bullies as representing general opinion. Of couyrse te fact is that only the few who care about such things make a fuss.
    As a right winger, when some lefty idiot makes stupid remarks about anything, my first thought is always, well he or she has just improved the chances of people seeing how silly much left-wing thought is. If it were up to me, I’d be goading on the journalist who attacked the memory of ANZAC and the flag-hating academic to say more, as that would guarantee revulsion for their ideas. But the idea of sacking them for those ideas is stupid.

  6. Andrew_W says

    We do not want a society where self-help becomes dominant, because in such a society, decisions are made in anger, and almost always result in some level of injustice.

    As I understand it, this means that the author is in favor of more disputes being settled in court. Given the cost of justice I suspect many of those outside the legal profession might have reservations on that one.

    • Katy Barnett says

      Yes. I’m afraid that legal fees mean legal advice is expensive and out of reach of most ordinary people. This is not ideal because it means that people can no longer access the private law. I am not sure what to do about this, although I would scrap billable hours for starters…

      • Peter from Oz says

        I am a practising lawyer and it seems to me that the problem is that the law is too blunt an instrument to use in this case.
        I suggest that in this situation we need to consider the wise words of Lord Moulton. He noted that there were three sources of authority. First was individual choice, second was the law and the last, which he called the thrid domain were the social rules that we all follow though not compelled by force to do so. The problem in recent times, and this has been made worse by the growth of the internet, is that the collectivists are wedded to government solutions to social relations. They have thus extended the law into places where it should not go, such as racial discrimination and villification. This has weakened the third domain, such that most people now forget it exists at all. They want to use social pressure as a quasi-legal system to achieve ”instant justice” whilst at the same time subverting the thoird domain by claiming morality is a personal choice. This all stems from thinking about people as staerotypes rather than as individuals.
        We make the mistake of thinking the 100 twitterers who get agitated by politically incorrect behaviour do not represent the millions of people out there who really set the rules for the third domain. We thus give up our power by default, to a bunch of whingers (most of whom are left-wingers of the most objectionable sort.
        The only real solution to te problem is for the people to grow a back bone and stop giving into these whiners.
        Sinistra delenda est

        • Andrew_W says

          Peter from Oz,
          while I agree with your concerns about option 2, I think option 3 (“the social rules that we all follow though not compelled by force to do so.”) is also in trouble:
          https://quillette.com/2018/07/28/liberals-have-compromised-on-their-own-values-an-interview-with-ali-a-rizvi/#comment-29344

          My preferred option would be a freer judicial system, you know, minimize the power of the lawyers union (I think it’s usually called the Law Society), develop a legal system that free of government and union orchestrated control, and just as competing private medical providers give a better service dollar for dollar than state hospitals, competing private schools give a better service dollar for dollar than state schools I’m confident that with the free market in control the price of legal justice would come down.

          I’m always against monopolies, whether government, business or staff when a laissez-faire market system is possible. Of course those protected by the monopoly always, always(!) can find self-serving excuses for retaining the status quo, but once the change is made to a free market situation the latter inevitably proves better.

          • Peter from Oz says

            The legal profession is a a competitive profession which actually keeps the wheels of private enterprise moving.
            I agree however, that we do need to get the lawyers out of a lot of small scale disputes and even larger disputes between private individuals. There need to be quick dispute resolution tribunals which mediate and arbitrate such disputes.
            The problem has always been that non-lawyers aren’t trained in the rules of evidence, which are the best tools available to determine truth.
            But it should be possible to solve small disputes without needing lawyers to represent the parties.

        • Well said. Might I also observe that the most vociferous reactions to what would generally be considered highly offensive public remarks occur where the commentator is in some way employed on the public purse and are, almost always, leftist. They bite the hand that feeds them.

  7. Paranoid_Android says

    I’ve got to question the inclusion of the example of Roz Ward in this article. It’s an absolute certainty that if the red flag referred to had been the Swastika the outrage would be that she got off much to easily. Seeing as a hundred million more bodies can be laid at the feet of socialism its either ignorance or maleficence to not condemn Miss Ward as vigorously as if the counterfactual had taken place.

    A far-left extremist like her has no more place teaching Australian Children about anything. Anymore than a member of the Aryan Brotherhood would.

    • Katy Barnett says

      I’m sure some people would say the same thing about Israel Folau – that beliefs such as his caused many deaths through history and this is why he should be sacked. And no, I’m not being hyperbolic – I have seen people argue this. Would you stop him from playing rugby? or interacting with young players?

      For me, the important point re Ward is that we should have viewpoint diversity in universities. In other words, there has to be people with different views who can debate with Ward and are also involved in the development of such programmes. She has a view, you have another view, I might have another view again. All views need to be taken into account when developing public policy, particularly lessons to be taught to young children.

    • Ned Ludd says

      Socialist organisations operate legally in Australia, run in elections, campaign, etc. and do not cause any meaningful damage to society. Given this, how can you say that the idea is worthy of outrage? It is one thing to look historically at what happened under the name of socialism and another to look at socialism at it actually exists in Australia.

      • Lincoln Dunstan says

        In reply to “Paranoid_Android”

    • Jeremy Smith says

      A much ignored or is it forgotten? or obscured? Fact. I think part of the problem is when the general public think of socialism then think about Scandinavia and not the gulags or killing fields. The academics circle is another problem.

  8. sorethumb says

    Johnathon Haidt discusses how macro society is held together by sacred objects and ideas. Anzac Day is one of them.

    • Andrew_W says

      Are you suggesting that, because Anzac Day is sacred, some form of punishment or formal censure of Scott McIntyre would be justified?

      • sorethumb says

        As with Abdel-Magied this was a reaction based on public sentiments. It demonstrates that a nation is not just skin deep based on “civic values” but something much deeper. Good riddance to Scott McIntyre (don’t slam the door on your way out) and Abdel-Magied.

        • sorethumb says

          In both cases the jobs in question were in media so offending the audience mattered. Sure academics can pull issues apart but as with Queen Elizabeth, some ideas have a uniting role and what is there that can stand up to scrutiny 100%? In other words such things may be partly based on myth but those myths are useful. We don’t say to a child: “your fathers not very smart and one leg is longer than the other…”. Even if it is true.

      • stevengregg says

        Informal public censure would be enough. Perhaps he could be mandated to explain how a conventional invasion of Japan would be less deadly than the atom bombs.

    • Katy Barnett says

      Yes, I’m aware of Haidt’s writings, and in the initial draft of this piece, used his writings in relation to all examples to note that different political groups have different ideas which they consider to be sacred. I used different examples from different political traditions on purpose, to illustrate the point. Some might say that the reaction to Pansy Lai was also based on clear public sentiments (because people often tend to hang out with others who think like them). Would you agree that she should be delisted as a GP as a result? Public anger is a dangerous weapon.

      • Bill says

        Katy, I noticed you alternated the victims among the various political/social views and enjoyed that since it highlights very clearly how the mob-rule/mob-justice/quell-free-speech cuts both ways. In the US, when Senator Reid abandoned the filibuster rule for nominees back during President Obama’s era, it was repeatedly warned that the Dems would not forever be in power and would regret when that was used against them. Here we are today.

        We have freedom of speech in the US which mediate’s the government’s ability to censor speech; however, we do not have a clear boundary for employment. Many, if not most, persons have an outside-of-work persona at odds with corporate reputation standards. Where does it end? Can the anti-religion types form the lynch mob and demand the firing of someone who posted pictures of their child’s baptism?

        • Lincoln Dunstan says

          Is the instance at Google a case in point?

        • Katy Barnett says

          We don’t have an explicit right to freedom of speech in our Australian constitution (although an implied right of political free speech has been found).

          I guess my concern is exactly what you state, Bill. Where does it end? Because there’s an unlimited number of things about which people might be offended…and it has to stop somewhere.

          • Peter from Oz says

            Hasn’t the implied right of free speech in political matters been diminished by the High Court. After all, if that right did exist it would make S.18C of the Anti-Discrimination Act, that terrible blight on Australian freedoms, unconstitutional.

      • sorethumb says

        I don’t agree that Pansy Lai should be delisted. I was skeptical of gay marriage, however I reasoned that they wouldn’t do it unless they really wanted to. Likewise Pansy Lai; she obviously feels strongly based on her religious beliefs and those religious beliefs have been around much longer than gay marriage.

  9. Pingback: Unsafe Space

  10. jezza says

    I am not an academic, just an ordinary citizen, but I find the author’s remarks quite convincing. Unfortunately, our system of justice moves so slowly and expensively that for the average person it is out of reach. Could not our police forces be empowered to field complaints of false witness and use their resources locate and prosecute serial offenders? ‘False witness” has long been regarded as a sin; if it were made a crime, the now anonymous mob might be unmasked. Its eagerness to pile on might be lessened if by merely being held responsible for publishing a falsehood, individuals lay open to punishment, whether they initiated the falsehood or merely repeated it In that case, perhaps this naughtiness will become a sub-set of cyber crime.

  11. ga gamba says

    A way to sort this is to bring back dueling. This is not saying duels are a good thing, but rather my proposal is an acknowledgment some people choose to learn the hard way. No matter how many times his mum warns him, there’s always going to be the fella who sticks his tongue in the mains electricity socket. When two or more of them come into conflict, it inevitably becomes stupid quickly. Send the offence maker and offence taker to the dueling grounds. Once the bodies begin to pile up then people may relearn respect for the law and that civility is important. Or maybe they won’t learn, but there will be fewer of them. Either way, a win for society.

    • No, not really. We did have such a society until the 17th century, and people never really learned. Exemplary damages for defamation arose to prevent duelling, because obviously person being killed in a duel for a careless word could be devastating…even more severe than losing your job…

      • ga gamba says

        The problem, of course, is that civil legal remedies for defamation favour those who are rich; are well financed, such as Hulk Hogan by Peter Thiel; or whose case appeals to an activist lawyer.

        In the situation of historic dueling, a person who spoke carelessly was given the opportunity to retract the insult, apologise, and the matter was considered resolved. Today, this resolution has disappeared. Perhaps this is due to apologies no longer carry a stigma, or carry less of one, than hundreds of years ago; this is speculation on my part, but the “honour culture” that once fed it seems to have dissipated significantly, existing mostly in the world of organised crime and gangs where “disrespect” is still often deadly. Even the idea of “national honour”, which once ignited many heated diplomatic rows and even battles, has fallen by the wayside. Today, upon receipt of an apology the mob becomes more whipped up, and, now having this admission of guilt, demands punishment too, such as employment termination, expulsion from school, etc. This is deemed a just remedy, though usually no restitution is provided to the individual “victim”. The mob’s satisfaction trumps all else.

        With the rise of “words are violence”, a belief held deeply by many, that’s taught in some schools’ curricula, and also advocated, or at least absolved, by some in the mass media, it seems inevitable violence will be perpetrated because it’s believed to be legitimate. Having a large segment of the public think the existing legal system is illegitimate and therefore they may justifiably act outside it also doesn’t help.

        Hearing a word deemed violent, an adherent will believe s/he’s justified to respond with physical force. The speaker, now being attacked, responds under the assurance of one’s traditional right to self defence. Whether it’s a killer strike, an awkward skull-crushing fall, or weapons being drawn and used, deaths will occur. A couple of years ago it was right and leftwing extremists going at each other in Sacramento with knives, but more recently it’s been non-radicals and even unfortunate bystanders attacked. Someone is going to die. It’s inevitable. And if this happens amongst a large enough group whipped up emotionally, seized by the “just ” desire for vengeance, it may blow up into a massive upheaval. Think of the ’92 LA riots with violent mobs pulling motorists from their vehicles to be beaten and launching raids on Korean-owned shops.

        Dueling doesn’t have this blood-thirsty mob aspect to it. In fact for some situations, such as the tit-for-tat gang violence sparked by “disrespect”, it will likely reduce injuries and deaths to the wider community of people sitting in their homes, walking on the pavement, etc.

        • Bill says

          I think it’s worse than you state. In today’s social media culture, you can say the offending thing, not apologize, and be cheered by the mob! The apologies, if they do occur, are like my 2 kids being forced to say “sorry” to each other.

          Honor culture has been replaced by follower culture.

      • TarsTarkas says

        Cardinal Richelieu of France (who ran the kingdom for Louis XIII) tried to ban dueling because people opposed to his policies routinely used professional duelists to challenge those responsible for carrying those policies out. Hard to run a government when your underlings keep getting killed off.

      • Bill says

        The problem here is that the defamation is either not easily attributable to a small group that can be forced to make the defamed whole OR it can be an they are judgement proof. Someone, like the stereotype of the basement dwelling Bernie supporter, could be successfully sued all you want, but you won’t see a dime even sufficient to pay for the trouble to sue them. And public figures have it even worse off. Look at the things said about Mitt Romney in 2012 that were out and out lies where Reid’s retort of “we won didn’t we” still left him immune to any real recovery.

    • peanut gallery says

      Hah! I’ve had that thought. You have to ask yourself “is this slight worth dying/getting hurt over?” If it’s not, you relent. There’s no reason to relent in anyway when it comes to being a douche-canoe on the internet. There are probably plenty of reasons why bringing dueling back is a bad idea, but there is something to be said about politeness brought on by the fact that your words may actually result in real violence. You know, the original stuff, not “words I don’t like.”

      “Everyone has a plan until they get punched in the face.” -M. Tyson

  12. NickS says

    Why the disclaimer at the end : “This article represents the author’s views and not the views of her employer.”

    • Mark says

      You obviously don’t live in Melbourne, the SJW capital of Australia (the world..?). The universities in Melbourne (I live here) are completely indoctrinated by SJWs.

      • Just Me says

        Mark-

        ‘You obviously don’t live in Melbourne, the SJW capital of Australia (the world..?). ‘

        No, that would be Toronto…:-)

    • Katy Barnett says

      I’m a lawyer and an academic. I think I’d be fine for an article such as this, but best to be careful, as I have seen situations where workplaces have been called as a result of personal opinions expressed by academics.

  13. Rob says

    One of the reasons for outrage culture and public shaming is social media has destroyed all sense of proportion. The english-speaking world constitutes 1.5 billion people. And yet all it takes is a few hundred of those people to express their anger – a tiny fraction of the population – for an employer or broadcaster to regard the target of their ire as controversial or unpopular. So we let tiny numbers of people police the content of public discourse and wield enormous power to shame, vilify, and ruin lives.

    We need to find some way to restore proportionality and context to our discourse. To give us a sense of scale when talking about controversial subjects, and dismiss the passion of very small numbers of perpetually outraged. The moderate majority need to step up and stop being cowards in the face of bullying by zealots.

  14. Quiddam says

    Making the Internet unsafe and restricting freedom of expression is not really an option that will not backfire, and in fact it will only change the problem of side, so to speak.

    The best way would probably be an independent Labor board or something, that can adjudicate those things properly, and if the employer want to dismiss people without cause, maybe they could keep paying that employee for doing nothing until they find something else. That would send a message that those executives would have to listen to.

  15. OtherWay says

    Legal redress is too slow and too expensive. Lawyers and the State got far too greedy and have subsequently put themselves out of the redress business.

  16. Poorly Bird says

    I am a lawyer in England, and have wondered often why defamation/Lumley v Gye principles had not been used to seek a remedy from Twitter mobs (or the particularly prominent “activists” from among their number). Thank you for your interesting piece.

    One also wonders if FaceBook and Twitter themselves could be added as defendants to any action. After all, they are facilitating the online mobbing. Perhaps they are engaged in a degree of Nelsonian blindness with regards to the use certain “activists” make of their platforms, meanwhile enjoying the clicks and ad-revenue. A clever QC could construct a case, I am sure, though the resources required to take on these behemoths would be extraordinary. Perhaps the topic for your next piece?

    • Katy Barnett says

      Thanks Poorly Bird. I was envisaging a situation where some well known shock jock of any stripe or an activist incited a mob. In that way, you wouldn’t have to sue all the individuals, you sue the person who’s responsible for letting loose the “flying monkeys”. But yes, very expensive…certainly not something I could afford. Interesting question as to whether social media platforms are complicit in such behaviour. I’ve seen some appalling stuff on Twitter in particular which makes me think that they are.

  17. D Bruce says

    McIntyre deserved the sack for epic and perverted virtue-signalling.

  18. Interesting read.
    I was often told when growing up that you are judged by the people you associate with.
    I hold some views that many people would no doubt find offensive.
    I can however fully understand why employers would not want to associate themselves with people that hold views they feel are beyond the bounds of reasonable, neo nazis and communists are obvious examples.

  19. Mark says

    Safe Schools was co-founded by a Marxist. That explains a lot. Why we allow radicals to define the education for our children is beyond me. It’s doing tremendous harm.

    • Jack B Nimble says

      @Mark

      Lots of interesting ideas in this thread, but I found the Aussie-specific material somewhat confusing. I had to Google the “Marxist” thing and came up with this:

      ‘The problem with evoking Marxism in the Safe Schools debate By Michael Bradley

      As it dawns on our anti-Safe Schools crusaders that Marxism isn’t exactly a powerful totem of evil in 2016, their language will shift in a less specific direction. But their fear will be no less, writes Michael Bradley.

      “We need to look at other methods that aren’t originating in an ideology of queer gender theory and, let’s be honest, Marxism.”

      That’s George Christensen, the Liberal National Party backbencher, explaining the underpinning ideological evil of the Safe Schools Coalition program which has since, at the urging of a vocal minority of Coalition MPs, been “gutted” as Christensen happily reported.

      Christensen has had a lot to say about Safe Schools, including that one of its authors is a paedophilia advocate, but the focus of his attacks has been on ideology. He is backed up by Senator Cory Bernardi, who told the Liberal party room last week that Safe Schools was being used to “indoctrinate children into a Marxist agenda of cultural relativism”.

      To round out the triumvirate which has appointed itself to protect Australian children from ideological heresy, Lyle Shelton of the Australian Christian Lobby says that Safe Schools is part of a “political ideology” to “promote queer sexuality”.

      To refer to heresy is not a reach. When people claim that an ideology, which is antithetical to the orthodoxy which they prefer, is infiltrating society by underhand means, then they are speaking the language of heresy.

      Plenty has been written about Christensen’s and Bernardi’s strange obsession with Marxism or neo-Marxism. Karl Marx said nothing publicly about homosexuality, but his fellow Communist philosopher Friedrich Engels was openly hostile to homosexuals. Stalin recriminalised homosexuality, labelling it a disease….’
      Source: http://www.abc.net.au/news/2016-03-24/bradley-marxism-and-safe-schools/7272764

      Marxism, pedophilia, cultural relativism and queer sexuality: did they leave anything out?

  20. Peter Kriens says

    An absolute fascinating read in this context is a discussion on Github, a software developer collaboration site. A transgender requests the removal of one of the primary workers on a project because he insulted her on twitter. The transgender (don’t know her preferred pronoun) had no prior relation to the project. Note, this kind of work on Github is 100% voluntary. Kudos for the lead of this project to stick to his guns.

  21. peanut gallery says

    I always wonder why sponsors become afraid to advertise because of something. Aside from it probably being overblown, even if it’s not, KKK members might want to buy Tide. Do you know how hard it is to keep those robes clean!?

  22. The biggest problem with social media is that it has empowered that segment of society that should least have power: resentful SJWs who depend for their sense of self-worth on tearing down anyone who has actually accomplished anything with their life.

    The only thing keeping our civilization from being transformed into an intersectional hellhole is that these twitter mobs are too lazy to get off the couch on election day.

  23. TNT666 says

    The problem with the internet is that it’s also anonymous. So though the defamatory act can circulate publicly and ruin both the person’s reputation and the corporation’s brand… if the calls for firing were done anonymously, even without a firing, the reputation damage is done, and the attacker is nowhere to be found, for anonymous, so there is no court case possible.

  24. Arthur Hartwig says

    For the dueling proponents, there are always ” Words at x paces”. We too easily ignore: “A critic’s criticism remains the criticism of the critic.”

  25. Gayle says

    Surely one way of tackling thi is to force Twitter and Google et al, to not allow anyone to comment anonymously. If you want to be a vicious b***h or b*****d, you should have to identify yourself. Free speech is important but so is identification. If those piling on is some of these Twitter attaches were identifiable, it would allow more action to be taken and might add a few victims to the “to be fired” list – and most importantly of all, it might force people to think twice before acting like vindictive idiots.

  26. I recently wrote an article on Medium.com about this with relation to the Me Too movement, specifically Chris Hardwick and Chloe Dykstra. We have indeed devolved into a “guilty till proven innocent” society.

  27. Aaron says

    It disappoints me that the Right, which apparently holds itself out as a champion for the freedom of speech, so meekly follows the Left in condemning the opinions and points of view of others.
    Surely the Right can the see the long term benefits of differentiating itself and using this as an idealogical point of distinction.

  28. Paul Knox says

    I don’t know the legal and labour-relations context in Australia. But two aspects of Canadian legal institutions may be of interest.

    One is the crime of harassment. This derives, I believe, from the doctrine of watching and besetting, under which it is unacceptable to monitor or physically accompany a person and/or premises with the intention of causing discomfort or ridicule, interfering with private activities, preventing the exercise of gainful occupation and so on. I’ve been told that in the USA police are indifferent to complaints of social-media harassment, presumably reasoning that all online speech is protected under the First Amendment. But in Canada, recently, police laid harassment charges against two women who had exchanged public posts advocating establishment of “Shoot An Indian Day.” Personally I’m in favour of broad protection for expressive content, including some that might be described as hate speech. I believe it is vital to guard against the recognition of thought crimes, but also that incitement to physical aggression does not deserve free-expression protection where there is a credible threat of imminent consequences. It seems clear to me that the law of criminal harassment will evolve to embrace online activity, and advocacy groups should push for this.

    Second, the principle of progressive discipline is well established in unionized workplaces. Collective agreements establish a grievance procedure and most dismissals are grieved. Unresolved grievances are submitted to arbitration, and without a convincing case that a dismissal was for gross misconduct, or that it followed several documented incidents in which discipline was applied (mandatory training, suspension, etc.), an arbitrator will be reluctant to uphold it. Most tenure-track faculty at Canadian universities are unionized, and although their collective agreements may not explicitly refer to freedom of expression, they contain language intended to protect the academic freedom of members. It can fairly be argued that social-media activity is an extension of academic work and therefore entitled to academic-freedom protection. Dismissals for social-media conduct should be grieved, academic-freedom arguments should be advanced, and arbitrators should be urged to apply progressive-discipline principles if they determine that a grievor’s actions warrant discipline. In a workplace, dismissal in the absence of a previous disciplinary record amounts to capital punishment for the first offence. The injustice inherent in this notion should be self-evident.

    Finally, it’s clear that written policies and agreements need to be kept up to date. University administrations that are quick to sanction social-media activity are often found to have failed to update policies on employee conduct since the pre-internet era. Collective agreements should contain language protecting not only academic freedom but also freedom of expression, as the two are not synonymous. Faculty unions should propose language explicitly prohibiting universities from considering calls from the public for dismissal when contemplating action in response to a faculty member’s exercise of expressive freedom. It’s past time to erect institutional safeguards against the ruining of lives and careers by shrieking social-media mobs.

    • Katy Barnett says

      That’s very interesting! Thanks so much. We are presently having a debate about what academic freedom means at my uni.

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