I hate to be that guy on the Left, but...

How the left lost its way on the question of private-sector repression

I hate to be that guy on the left, but I'm going to be that guy on the left.

One of the arguments Republicans are making tonight about the firing of Jimmy Kimmel is that while they're unhappy and uncomfortable with the head of the FCC's threatening to pull ABC's license, they'd be absolutely fine if the network simply made its own decision, sans government pressure, to fire Kimmel.

Senate Majority Leader John Thune said to NBC, "Well, my preference would always be to let the companies make economic market decisions." Senator Mike Rounds, Republican from South Dakota, said, "I understand that right now it's an employer-employee issue, and that's the way I would approach it." As if there were any doubt about what would bring them all together, Senator Lisa Murkowski explained that "I do think it was very unusual for the head of the agency to issue what seemed to be very challenging comments," but Kimmel's statements were "out of bounds" and networks, like all private employers, can fire whomever they want to fire.

What does this have to do with the left? One of the arguments that I heard repeatedly during the cancel culture debate of the last however many years was that private employers' firing employees, not for on-the-job harassment but for social media comments and the like, were not violating any kind of principle of free speech because the First Amendment only applies to state action rather than action in the private sector. Likewise, companies like FB or Twitter's censoring or removing people's posts could not, by the very nature of things, violate freedom of speech because they are private companies, not the government.

Whatever one thinks about the threat to free speech from the right versus the left—and I hope I've got a solid enough record of years of scholarship and public writing and activism on this issue that no one will doubt where I stand on that question—the specific argument that private employers cannot pose a threat to freedom of speech merely because they are not state actors, has always been bad news for anyone on the left, particularly anyone with a knowledge of the history of private-sector political repression.

There are, I concede, thorny questions when it comes to online harassment and swarming and the like, particularly on social media (though I think in the workplace these issues have a long legal history that provide us with some guidance for working out the complexities in that and other spaces), but before we can even get to those questions, we have to give up the notion that private-sector censorship and firing pose no problem for freedom of speech.

Now we're seeing Republicans make the same claim as was made on the left. Republicans and conservatives have shown that they are absolutely indifferent to the constraints of consistency, so I would never say the country would be in a better place had the left not bought into this fallacious argument. But, long term, we're not going to get anywhere, on the left, by buying into the notion that private employers don't threaten freedom of speech because they are not state actors. As we're seeing now, they often serve as the perfect substitute for the state, and any free society has to understand that.