Corporate Cancellations

A Review of Working for the Brand: How Corporations Are Destroying Free Speech by Josh Bornstein, 304 pages, Scribe (October 2024). 

The Apple TV series Morning Wars opens with a #MeToo moment: fictional news anchor Mitch Kessler is being fired for sexual misconduct. Upon being advised by his business manager that the studio will not be paying out the remainder of his contract—leaving him abruptly without income—Mitch responds: “How is that even possible? I’ve made more money than God! Right?” When his manager responds drily, “God didn’t violate his morals clause,” Mitch launches into a tirade: 

Oh morals clause, really, oh wow. Fuck! That! What a crock of shit! Morals clause! These people back up the Brinks truck and give you everything that you’ve always wanted except for one thing: there’s going to be a morals clause in your contract. Oh, okay, well, you’re not an idiot, and everybody’s telling you they won’t trigger it, they never trigger it. That’s not even… that’s just covering their asses. And these guys, you’ve known them forever, you have worked with them, and they more than approve of your, your behaviour, it’s fine with them, as is evidenced by the fact they just gave you the most lucrative deal in the history of morning news. And, you don’t want to be that guy, who says, no, take the morals clause out, and then I’ll sign it. ’Cause that sends a bad message. You know what a morals clause is? It’s a moving fucking target! It’s anything they want it to be! It’s as the wind blows! (S1 E2).

Mitch colourfully expresses a point that Australian employment and labour relations lawyer Josh Bornstein makes more soberly in his new book, Working for the Brand. Employment contracts often constrain employees’ behaviour in unclear and unpredictable ways, allowing employers to excise employees who damage the brand, without having to let them know in advance which behaviours to avoid. In some cases, the constraints involved represent an unjust encroachment on employee freedoms.

Bornstein addresses the distinct ways in which these tensions play out in the contexts of journalism and academia, as well as discussing consensual sexual relations at work and the phenomenon of “ethics-washing,” through which corporations give their brands the sheen of morality—often while engaging in unethical business practices that directly contravene their stated ideals. The book is particularly concerned with employer encroachment on the political speech of employees.

Australians are likely to be familiar with the case of Scott McIntyre, who was sacked by Australia’s national broadcaster, the Special Broadcasting Service (SBS) in 2015 for a series of tweets critical of Anzac Day, Australia’s equivalent of Remembrance Day. SBS had a code of conduct requiring that “SBS employees must not engage in any act, including using new or social media in a personal or SBS capacity, which may compromise the reputation and integrity of SBS.” Bornstein writes:

SBS’s rules about speech—and other rules like them across the labour market—are impossibly unclear. The rules also set impossibly high standards of behaviour and values. No one is able to be authentic, truthful, transparent, honest, respectful, fair, courteous, and sensitive at all times. Not priests. Not judges. And definitely not politicians. Jesus wasn’t, and couldn’t. Nelson Mandela, ditto. Mother Theresa, I’m afraid not. … McIntyre was sacked for bringing both himself and SBS into disrepute. And yet the rules of his employment stated that he had a right to enter public debate in his personal capacity. That is what he did. There was no suggestion that McIntyre was expressing opinions on behalf of his employer. He was a sports journalist; his views about Anzac Day bore no rational connection with his employment.

Even those familiar with McIntyre’s sacking might not know about its aftermath, which Bornstein—who represented McIntyre pro bono—relates in Chapter 1, titled “Rage and Revenge.” Bornstein reports that McIntyre’s wife found the situation “enormously upsetting, humiliating, and frightening.” She ended up moving back to Japan with their children, while McIntyre stayed behind in Australia to defend himself. He eventually joined his family in Japan, but his wife remained angry with him for the next couple of years, and he struggled to “reboot his career.” One day, he came home and they were gone: his wife “had removed the children from school, changed her phone number, and disappeared with them. [McIntyre] discovered that the abduction had been planned for some time and that his daughter’s hair had been cut to disguise her. His desperate attempts to find his children resulted in his arrest for trespass and incarceration for six weeks.”

Tracing the “anatomy of a pile-on” in this way is useful, because it fills in the blanks that come after the newspaper headlines and tweet-storms. Scott McIntyre is a real person, whose real life was blown up by SBS’s failure to respect his individual right to contribute, in a personal capacity, to public political discussion. He lost his livelihood, his family, and for a period, even his liberty. All of that was easily avoidable, and it’s hard to read Bornstein’s account of events without feeling angry at whichever spineless individual at SBS made the final decision to cut ties.

Bornstein’s solution to the problem of corporate overreach into employees’ lives is unions. He laments the fall in union membership and appears to see unionising as the only way for employees to push back and negotiate contracts and terms that strike a better balance in respecting a personal/professional distinction. He is insistent on this point even while briefly acknowledging that some unions have been so caught up in identity politics that they have taken the side of the employer against employee political speech (this comes up briefly in “Chapter 6: Academic Freedom and the University Brand”).

Unionising is a form of collective action, so it’s true that forming unions is one way for individual employees to coordinate and achieve a stronger bargaining position vis-à-vis their employer and thereby resist employer overreach. But this is not the only way to bring about change; employees might also pursue reforms to workplace law directly. That would have the benefit of protecting workers across multiple sectors, rather than making such gains a sector-by-sector struggle. The UK’s Higher Education (Freedom of Speech) Act 2023 was a version of such legislation for the tertiary sector, protecting freedom of speech and academic freedom inside the university (although the current government has said they will no longer be bringing the Act into force).

Perhaps the most frustrating aspect of Bornstein’s book is that he appears to view the world as a good Left/bad Right binary (placing himself on the good Left, of course). One place this shows up is in the narrative that it’s overwhelmingly the good Left that is being cancelled by the bad Right for their political speech. Alongside Scott McIntyre, Bornstein discusses, among others, a film critic for The Age; Australian Broadcasting Corporation (ABC) presenter Yasmin Abdel-Magied; a woman “handing out how-to-vote material on election day at a voting booth for the Australian Labour Party,” targeted at her workplace by “an older man handing out cards for the Liberal Party”; his own harrowing attempted cancellation (“Chapter 5: A Festival of Hypocrisy: free speech and cancel culture”); and the repelled cancellation attempt of the Safe Schools Coalition’s Roz Ward. He discusses only two cases in which it is the good Left who did the cancelling: the case of professional athlete Israel Folau, who was sacked by Rugby Australia for a religiously motivated homophobic Instagram post (to his credit, Bornstein reports that he argued in Folau’s defence both on Twitter and “in a television interview for The Project”) and the case of Peter Ridd, who was sacked by James Cook University in Queensland for comments made about climate change impacts on the Great Barrier Reef. This skew toward cases of Left cancelled by Right is not an accident; Bornstein writes explicitly that “The authoritarian right’s cancel culture is far more ambitious, systematic, and effective than the progressive left’s.”

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Another place in which the good Left/bad Right binary shows up is in the portrayal of the bad Right media as trolls and provocateurs inciting the demise of good Left commentators (named in the former role are Crikey, Sky News, The Australian, and journalists Peta Credlin, Chris Kenny, Rita Panahi, and Andrew Bolt). The entirety of the Murdoch press is presented as the bad Right: “Since Rupert Murdoch’s Fox News emerged in 1996, it has been generating revenue by pumping out disinformation as well as stoking rage. … Australia’s version of Fox is Sky News, which, together with a large stable of Murdoch newspaper journalists, exploits the same methods”; “In the US, the UK, and Australia, the disinformation propagated by the Murdoch empire is an anti-democratic cancer, bringing to mind the chilling prophecy from publisher Joseph Pulitzer in 1904: ‘A cynical, mercenary, demagogic press will produce in time a people as base as itself.’”

The entirety of the union movement is good Left. Neoliberalism is bad Right. Investigative journalism is good Left, fighting against the bad Right market forces that seek to protect the newspaper’s brand at all costs.

These background moral assumptions limit both the diagnosis of the problem and the creativity of the solutions. People from across the political spectrum engage in cancellation attempts against their ideological opponents. Some media is politically biased and some media commentators are trolls. Rupert Murdoch owns News Corp, News Corp publishes The Australian, and The Australian funds Hedley Thomas’s investigative journalism, which has led to the reopening of cold cases involving murdered women, and the exposure of practices in a Queensland DNA lab that call decades of DNA testing (including of rape kits) into question. (I offer this as a clear example of good Right media—or better, just good media).

Unions can be corrupt, overtaken by ideologies—trans activism in Australia’s National Tertiary Education Industry Union (NTEU) being a case in point—and full of unbearable personalities who make it almost impossible for them to function. Market forces are a normal part of capitalism. Left/Right antagonisms happen against that background, which means they influence both Left and Right.

Once corporate overreach into employee lives is reframed outside of the good Left/bad Right binary, unions are a far less obvious solution. Rather, a range of philosophical questions open up. Has the corporation become a “private government,” as Elizabeth Anderson argues with reference to US employers like Walmart, controlling aspects of individual workers’ lives in a way that would not be tolerated if it came from government? In what kinds of employment roles is an employee so closely associated with the employer in the public mind that it is no longer plausible to draw a private/professional distinction and grant the employee “personal” speech rights—and is it possible to compensate adequately for this loss of a crucial element of one’s private sphere? Are there any personal rights that are inalienable, such as the right to contribute to public political debates, regardless of the employer’s preference—making it unacceptable for employment contracts to place limits on that right?

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Corporations are increasingly prone to formulating explicit moral positions on issues of social importance and punishing those who fail to condone such positions to the extent that they are able to do so.

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Is harmony between an employee’s political, ethical, and/or religious beliefs and the employer’s stated values merely a pleasant outcome when one can get it, or is it something we should be trying to secure for all employees? Is the world better when the workplace brings us into contact with people with whom we disagree, and shows us that we can work for a common purpose despite that disagreement; or when it stratifies employees into communities of value consensus? Given that the employees together are the company or corporation (an employee can speak as/speak for and act as/act for the company), when can the company direct its employee to say things she does not believe, in her capacity as their representative, and when does that cross the line into forcing her, as a private citizen, to engage in compelled speech? The University of Melbourne’s mandatory preferred pronoun policy, together with company directives to open meetings with an Acknowledgement of Country (the Australian equivalent of a land acknowledgement) may be good cases to consider here.