He used a Google mailing list

Business Insider says nah, James Damore isn’t the new free speech hero the world has been looking for.

James Damore, the Google employee fired Monday for publishing a 10-page anti-diversity manifesto, almost certainly has not had his First Amendment free-speech rights infringed. If he sues Google — which Reuters reports he is considering — he will lose, unless he can find a court willing to create a new free-speech right for American workers.

Tuesday morning, the alt-right corners of the internet are rallying to Damore’s cause. He is a shining example of how the left bans certain conservative ideas and punishes people for trying to discuss them openly, they say. It is outrageous that someone can lose his job simply for disagreeing with the politics of his liberal employer, they wail.

But what about for circulating his own opinion that women aren’t good enough to work at Google? What about the effects that will have on Google as a workplace, Google’s potential for being sued by the government, Google’s reputation? Is all that a good enough reason for someone to lose his job?

“I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does,” Damore told The New York Times.

The problem is that US labor law is well settled in this area: In the vast majority of US states, employees have almost no rights to free speech at work.

The First Amendment constrains the government, BI goes on, not employers.

Another catch for Damore is the fact that he did his speechifying in and at Google, using Google resources. That’s not the same as expressing an opinion elsewhere in the world using his own resources.

Damore’s problem is that he used an internal Google mailing list owned by Google to disseminate his manifesto. People do not have the right to use their employer’s resources to pay for their freedom of speech.

As illustrated by Volokh years ago in The Washington Post, the California test is whether Damore’s speech disrupted the legit business of his employer. As CEO Sundar Pichai’s memo makes clear, his manifesto became so internally disruptive that Pichai had to cancel part of his vacation to deal with the fallout. Pichai’s memo describes a “very difficult few days” at the company that forced him to fly back to California, from a trip to Africa and Europe, to fix the Damore problem. That would indicate that Damore’s speech was so disruptive it was handicapping Google’s work of building software. Indeed, the reports coming out of Google suggest that the internal reaction was so extreme that plenty of work hours were lost as employees clashed over the manifesto.

Gee, dudebros can’t even have any fun any more.

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