It appears that my two recent two posts (here and here) on Tucker Carlson’s dismissal and his reticence (thankfully temporary) were broadly correct about the larger threat to our freedom of speech. As I understand it (see Epoch Times article), his contract did contain a clause that, Fox News would have us believe, effectively gags Carlson from speaking about public affairs for the rest of his life. That is, he is barred from criticizing not simply Fox, but also the broader news media and everything else (unless he does so as a Fox employee). In other words, Fox is trying to use a private employment contract to force an employee to sign away his First Amendment freedom of expression.
Astounding as this sounds in its audacity, it is consistent with what I was suggesting has long been going on in our universities (especially conservative ones). I must admit that, early on, I kept asking myself if I was being paranoid (“conspiracy theory”?) in the devious intent I seemed to have detected disguised in other legal devices. Carlson’s case confirms my fears.
My argument is that universities and other educational institutions (including and especially conservative ones) are using private employment contracts to do the same thing as Fox News: deprive people of their freedom of speech and other constitutional rights. Universities are stretching non-disclosure agreements (or more insidiously, non-disparagement agreements) and mandatory arbitration clauses to silence their critics by imposing de facto legal gags on them for life. At the least, they are depriving their professors of academic freedom and at worst — as seems to be the case here — of constitutional freedoms. I base this on my own experience and that of some colleagues in conservative Christian universities and seminaries. So perhaps it is no accident that Carlson is being gagged, attemptedly, by a purportedly conservative news network. Universities and news: two institutions that depend on freedom of expression for their existence (or at least their integrity) are taking the lead in squelching it.
This subterfuge is so devious and so obviously unconstitutional that a man of Carlson’s stature will certainly, even now, be vindicted in the courts — eventually. But a lot of damage can be done to ordinary mortals in the meantime. The mechanisms I identify are more subtle, and — applying to ordinary people — they are less likely to be invalidated by the courts, at least not before they seriously harm innocent people.
The just and constitutional solution, it seems to me, is for courts to invalidate these devices altogether insofar as they impinge on speech. If a disguntled former employee unfairly slanders or libels his former employer, then he should be held to account under public laws. If he is excercising constitutionally protected speech or publication on larger public issues, then obviously he should be free to do so under the Constitution. But non-disparagement or mandatory arbitration clauses in private contracts should have no bearing one way or the other. Their only purpose is intimidation.
If you want to know more about this matter than what is in my Substack pieces, I published several in-depth articles on this in 2019-21, including a scholarly one on the site of the prestigious James G. Martin Center for Academic Renewal. Though not well known, this trend explains a lot about the deterioration and corruption of American colleges and universities, and it certainly deserves further investigation.
NB: I apologize if you received a repeat of an earlier post. It is easy to hit the wrong button, and they do not request confirmation before sending it.