Practical Solutions to Business Puzzles

Even as he gave me permission to reprint this comment, Paul Shafer was concerned that some might be offended by it.  Perhaps, some will be offended.  More people are likely to agree with the comment and be able to relate to it.  Most may even agree with my assessment.  The discussion with Paul reminded me that, in some organizations, employees are so worried about being politically correct that they fear raising important business issues. 

Many young attorneys are worried about political correctness.  And so was I.  Several years ago, the president of my subsidiary of a Fortune 100 company said that he wished people were comfortable talking to him about issues, rather than bringing issues to me to take to him.  From then on, that was what I encouraged people to do.  Even so, expressing an opinion requires people to be willing to stand out from the crowd. 

This article considers freedom of speech in business.  Why is it important?  The article is intended to help my business law students think about Freedom of Speech.

Constitution

For government employees in the United States, it is easy to stand up and be counted.  Easy relative to what others experience, anyway.  The First Amendment to the United States Constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Over time, that approach has been extended from the federal government to state and county governments.  Several large organizations have adopted this model because it makes it safe for employees to question leadership about the direction and to take ownership.  This leads to better decisions about the organization’s direction, and resources.

Abrams v. United States

Some organizations and people in leadership roles have difficulty being questioned.  If people are certain that their answer is right, do they have the ability to listen to those who might disagree?  In Abrams v. United States, 250 U.S. 616 (1919), the United States Supreme Court considered the publication of two pamphlets. The case can be found here. It is known for Justice Holmes’ dissenting opinion which said

Persecution for the expression of opinions seems to me perfectly logical.  If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.

Have you seen a speaker or writer who is so certain that the person is correct that dissent seems to be discounted?  This can be done by beating others over the head with an opinion.  Sometimes, it is done through sarcasm and subjecting others to ridicule.  In other cases, it may be handled through lecturing about different issues or approaches that the person chooses to use.  Think about the cases when you have seen writers or speakers do this.  It is relatively easy to stifle debate merely by telling someone that what they have to say is irrelevant.

Why do people engage in such behavior?  Well, Justice Holmes dissenting opinion suggested a possible answer when he wrote

To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

So, allowing dissent may be an indication of doubt or uncertainty, at least in some people’s opinion?  Well, I suppose that is probably true.  At times, people hear a tentative answer and respond, “say it with conviction!” 

Does allowing opposition to speech necessarily mean that one believes less in what one is saying?  Many seem to believe that it does.  One might conclude that allowing free speech, even when one disagrees indicates that one is open minded or willing to concede that the person does not have all the answers.  What else might allowing the opposition to speech indicate?  Justice Holmes then said

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

Think about a case where someone has suggested an idea, and it is immediately adopted because the person involved is respected.  Later, the idea turns out to be a problem, or one discovers other problems that have been caused by the initial solution.  What might such results suggest about the importance of allowing free expression of ideas?  

Allowing free expression of ideas carries risks.  Think about the issue that could arise if that were done.  After all, people might have different opinions.  There could even be conflict.  This might suggest that ideas should be suppressed.  What are the consequences of suppressing ideas?   

This approach, finding value in dissent, might not work.  Justice Holmes seems to recognize this, for he continues

That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.

What would happen if we required perfect knowledge to act?  Consider the consequences of acting only if we have absolute certainty.  What would the United States look like? 

Taking chances like Justice Holmes suggests is risky.  We might be wrong.  Surely, it is okay to restrict freedom of speech in some cases?  Here is what Justice Holmes wrote on that point

While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Wow! So ideas should be allowed to be expressed, unless they pose an immediate threat to the country’s continued existence?  What sorts of questions might Justice Holmes require if he were trying to decide whether or not a statement should be restricted?  Now, think about the sorts of statements that one hears in organizations.  One seldom hears statements that get close to this standard.  What factors play into this result?  What are the pros and cons associated with this result?

Significance

Most of the time, one has a right to speak, and not a duty to do so.  Suppose that an organization wishes to encourage employees to speak up and to raise issue.  Why might this be a negative? 

Think about the employees and customers who simply change companies, rather than speaking up about issues and concerns.  Why might one choose to change companies rather than speaking up? 

Today, we hear about the difficulty firms find in attracting and retaining customers.  It seems likely that there are steps that firms could take to attract and retain customers and employees by encouraging people to exercise their rights to Freedom of Speech so that people do choose against using their freedom not to speak.   What steps can firms take to achieve this objective?  How often do firms really want to see people speak, even if the news is bad?

What steps can be taken to balance the need for freedom of speech with the consequences that can result if freedom of speech is allowed?