Sunday, June 12, 2016

Odd Quirks in US our law regarding Free Speech

Free speech is the canary in the coal mine for assessing the political health of a country.  Although individuals may abuse that freedom in aggravating ways, that aggravation is vastly less consequential than the consequences of allowing speech to be controlled by society, since that inevitably means control ends up in the hands of the most personally ambitious people who cannot separate their own personal beliefs and interests from the greater interests of society, so their instinct is to stifle the speech of anyone who disagrees.

We do enjoy living in a country where free speech is a fundamental value, but there are still some oddities in how that speech is protected in the United States.

One of the most glaringly wrong oddities is the curious application of the constitutional right to free speech in business relationships that has evolved in US Supreme Court decisions.

Corporations exist only because the government creates them.  Government sets up rules that if the organizers follow they get certain benefits (most importantly the owners of the corporation are insulated from some responsibility for their actions).  But according to our Supreme Court, even though the people who own corporations already have all the free speech rights any citizen has, and even though Government could do away with all corporations tomorrow, government can't regulate corporations ability to spend money to forward the corporations political aims.  

Yet those same Corporations (and business in general) can use contracts to limit the free speech of their employees.  If a Corporation decides to fire a bunch of US workers and hire cheaper employees overseas, or bring in cheaper employees from overseas, it can pay the employees they are laying off a little bit of money as a severance pay and require those employees to sign contracts in which the employee promises not to say anything the employer doesn't want to hear.  For the employee's that get a pink slip they generally have little choice but sign, they have bills to pay and they need the severance money to keep them going while they get back on their feet.

Or if a Corporation is sued by some folks who were damaged by faulty products or services, the Corporation will typically will use the leverage of their ability to prolong lawsuits interminably to extract contracts where the victims promise not to tell the world about the corporation's bad behavior.   So the rest of society remains clueless and vulnerable to the corporation's bad activities.

Both of these seem wrong to me.   Corporations are not people, they are creatures created by government for economic purposes, the idea that government that can abolish them at the stroke of a legislative pen can't regulate their conduct in the political arena is nonsense.   

Further it seems to me society has an interest in free speech that should trump individual rights to use superior bargaining power to control situations to hide their bad behavior.  The law should take a dim view of contracts restricting free speech rights, and any contract with a clause prohibiting certain speech should be void when it a favors a party with a clearly superior bargaining position.

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