Duty Duty Duty
Last month Richard Posner said something similar to what Stanley Fish said, but Posner said it much more clearly.
For as a practical matter, chief executive officers do not enjoy freedom of speech. A CEO is the fiduciary of his organization, and his duty is to speak publicly only in ways that are helpful to the organization. Not that he should lie; but he must avoid discussing matters as to which his honestly stated views would harm the organization. (Judges also lack complete freedom of speech; as I mentioned in our introductory blog posting, I am not permitted to comment publicly on any pending or impending court case.) Summers must think that his remarks did harm the university, as otherwise he would not have apologized—for he apologized not for what he said, but for saying it.
That’s a bit different from what Fish said – especially in the part about ‘As a faculty member you should not give your president high marks because’ etcetera, which seems to assume that faculty members are going to give a university president ‘marks’ on exactly the same basis that a search committee is. But why would they do that? And is there any reason to think they would do that? Posner doesn’t make that bizarre assumption.
A university president might make provocative remarks because he wanted to change his university in some way, for example by encouraging greater intellectual diversity, or because he wanted to signal strength, independence, intransigence, or other qualities that he thought would increase his authority, or even because he wanted to intimidate certain faculty by seeming to be a “wild man.” But that explanation is not available to Summers, because of the apology.
Fish pretty much overlooked that possibility – that the wild man act could have been part of Summers’ perceived ‘job.’ Anyway, the CEO problem remains. It’s quite interesting. It’s similar to that much-repeated truism, that a corporation’s only responsibility is to maximise shareholders’ profits – a truism that has some very worrying implications for everyone other than that corporations’ shareholders (and even for them if they work for the corporation, or consume its products, or breathe the air in its vicinity). I didn’t really know that CEOs were explicitly required to ‘avoid discussing matters as to which his honestly stated views would harm the organization.’ I suppose I’ve always assumed they would be highly likely to avoid doing that, on account of wanting to maximise their own profits and all, but I didn’t think of it as being their duty. Duty. Hmm – I bet it’s not their duty in a sense that Kant would accept. But Posner isn’t Kant. But still – there is some ambiguity or vagueness hovering around all this, isn’t there? Even in Posner’s version. Clearly that avoidance can be seen as the CEO’s duty to certain people – shareholders, for instance. But can it be seen as the CEO’s duty, full stop? I wouldn’t have thought so. The CEO has duties in capacities other than the CEO capacity. As a citizen, for instance – or as a decent human being. Depending on what the organization is up to, the CEO might have a duty precisely to discuss matters on which her honestly stated views would harm the organization. A civic duty, as opposed to a fiduciary duty.
Whereas it’s another matter with the duty of a judge not to comment on pending cases. I have no problem with that (big of me, isn’t it) (never mind that, I’m just trying to figure this stuff out, here). But for one thing that’s a much more limited gag, and for another thing, it lacks the whole profit-motive, conflict of interest aspect. In short, the idea that CEOs have a duty to talk carefully seems to translate the interest of a small group into a general duty. Or to translate ‘duty’ into ‘what your employers want you to do’ – which can be what duty means, to be sure. ‘Here are your duties in this job.’ But it can also mean something much more general, and binding, and morally-based. Deontological doesn’t refer to employer expectations, surely?
Then again I suppose Posner could just be doing his ‘seeing everything from the point of view of an economist’ act. Or I could just be completely clueless. Bringing the organization into disrepute, I am.