On Anzac Day 2015 the SBS football journalist Scott McIntyre went for a walk in Sydney’s inner-west and observed drinkers outside pubs garrulously enjoying their day off. This enraged him. Soon after, in five posts on what was then Twitter, he condemned the commemoration of Australian war dead as “the cultification of imperial invasion” and wondered if “the poorly read, largely white nationalist drinkers and gamblers pause today to consider the horror that all mankind suffered.” He accused Australian servicemen of “summary execution, widespread rape and theft… in Egypt, Palestine and Japan” and condemned Hiroshima and Nagasaki as “the largest single-day terrorist attacks in history.”
McIntyre’s tweets stirred a frenzy of execration on social media, amplified by columnists in the News Ltd stable, into which was drawn communications minister Malcolm Turnbull, who called on SBS’s chief executive to take action. Next morning, McIntyre was sacked. In McIntyre’s action against SBS, alleging that he had been sanctioned for expressing a “political opinion” in contravention of the Fair Work Act, his solicitor, acting pro bono, was Josh Bornstein.
In the decade since then, Bornstein, a partner with Maurice Blackburn, has been a regular on this side of the barricades, identified with support for freedom of expression and a range of progressive causes. Most recently he was legal adviser to Antoinette Lattouf, that peculiar hill on which the ABC elected to die. In the interests of full disclosure, I also consulted him recently on a similar issue.
In fact, this is not Bornstein’s speciality: his background is in employment and labour relations rather than defamation law or civil liberties. Indeed, it is these specialities that inform Working for the Brand, his new book about a “corporate cancel culture” in companies and other institutional environments protective of their reputations.
Every organisation these days, willingly or otherwise, has a public profile and is thereby susceptible to the effect of external pressures on conflict-avoidant management. Unlike, for example, historian Timothy Garton Ash, whose Free Speech (2017) is conditioned by that writer’s experiences of totalitarianism, Bornstein positions his critique in the context of the neoliberal ascendant and the winnowing away of forces countervailing corporate power.
There is a contradiction at the heart of this. If corporate power is so unassailable, how come organisations are so easily spooked? Perhaps the answer is that corporate power is not uniform. You can be scabrous about Elon Musk on his own platform, now called X, and essentially shout into the void. It’s harder to look away if you’re a university administrator confronted by a News Ltd pile-on about an academic’s pro-Palestinian profile on social media.
Still, we might be talking about something that’s been around rather longer: the bureaucratic cast of mind that has always responded to disturbance by negotiation, negation and if necessary elimination. It was Ambrose Bierce in The Devil’s Dictionary (1906) who defined the corporation as “an ingenious device for obtaining individual profit without individual responsibility.” If corporate mores have changed, then so have public behaviours. Time was when we scarcely knew the political or social views of our colleagues, or if we did we were in the habit of minimising or avoiding difference. Social media has placed in our hands very powerful, even compulsive tools of extraversion, and provided virtual galleries to which to play. It is not only organisations struggling to come to terms with the results.
In general, I am in sympathy with Working for the Brand. Bornstein writes fluidly, anecdotally, sometimes amusingly, occasionally urgently — his brush with a right-wing American provocateur who passed himself off as Bornstein in order to rally online haters is genuinely terrifying. He parallels the proposition articulated by Elizabeth Anderson, a philosopher at the University of Michigan, that the decline of organised labour and the triumph of ostensibly free-market forces has led corporations to constitute as “private governments.” These new overlords “impose a far more minute, exacting and sweeping regulation of employees than democratic states do in any domain outside of prisons and the military,” even if “market pressures, social norms, lack of interest and simple decency keep most employers from exercising the full scope of their authority.”
Bornstein notes that free speech is not absolute: the right is not even upheld by our Constitution:
The laws that restrict freedom of speech in Australia are extensive, and include those operating in the area of consumer protection against deceptive and misleading conduct, workplace bullying, electoral regulation, sexual harassment, anti-discrimination, copyright, confidential information, national security, privacy, obscenity, nuisance, grooming of children, treason and contempt of court. Overwhelmingly these curbs on speech don’t excite outraged calls condemning cancel culture.
Those curbs, moreover, are more than enough: organisations have no business adding to them.
The restrictions on speech and expression are not the product of a democratic, deliberative process; they are unilaterally imposed. Unlike carefully drafted legislation, the restrictions are deliberate vague and imprecise. An employee cannot possibly know the parameters of the rules. The effect is chilling. Nor do these curbs carefully balance freedoms and rights. Instead, the overwhelming imperative is corporate brand management.
Where Bornstein might have gone further, I think, is in assessing the digital hazard of the intensifying volatility of communications. As John Stuart Mill long ago observed, “An opinion that corn-dealers are starvers of the poor or that private property is robbery ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer or when handed out among the same mob in the form of a placard.” Social media has taken us right to the corn-dealer’s door.
I am old enough to remember when Twitter hove into view and reporters and columnists believed they had to be “on it.” Twitter was “great for breaking news”; Twitter would make us all “accountable.” The first was pure vanity — the idea that as a journalist you had to be on top of everything immediately. The second was utter nonsense — as if journalists were not plenty accountable already. In any event, the last people capable of holding journalists accountable were a self-selecting sample of news consumers, disinhibited by distance and often by anonymity, who already knew everything about everything.
Something else, too. Its effect were subtly coercive. The easiest way to burnish one’s brand on Twitter, it steadily emerged, was to reinforce followers’ prejudices. This would be rewarded with popularity and blandishments — a terrible thing for journalists, vain enough already. There remains a reluctance to acknowledge X’s performative culture: the craving it answers for approbation, the anxiety with which it encounters and even courts disagreement, and perhaps above all the self-dramatising exhilaration that arises from riding the tiger of public opinion.
This is what intrigues me, for example, about McIntyre. He was an experienced media professional; he was well outside his area of expertise; this was not a cause he had researched in any systematic way or to which he had meaningfully committed by joining an organisation or even signing a petition. The medium he chose — bald, unadorned and permanent, admitting of no qualification or context but inviting reflexively hostile comment — was wholly unsuited to complex and nuanced questions about rights and wrongs of war. His, then, was a wildly disproportionate response to seeing people spilling out of a pub on Anzac Day, and it was always possible it would invite a wildly disproportionate response along entirely foreseeable lines.
McIntyre should hardly have lost his job. Bornstein is surely right that, from a legal point of view, the journalist’s “view on Anzac Day bore no rational connection with his employment.” But McIntyre’s motivations are surely perplexing. Whose minds did he fancy he was changing? Would he have shouted his sentiments in the pub itself? The answers are surely nobody and no. McIntyre was briefly a cause celebre; then, as happens, people moved on. But the incident was the end not only of McIntyre’s job, Bornstein reports, but also his marriage. His Japanese wife left him: “She struggled to understand why her husband had provoked the controversy, and was angry with him for upending their quiet lives.” Something is at work here beyond the frank expression of a controversial opinion — an addiction, a fever.
Bornstein complains that the SBS code of conduct, like many such, was ambiguous, promising to protect McIntyre’s “right to make public comment and to enter into public debate in their personal capacity” with the caveat that “individuals should consider how their posts will be perceived by the community.” But whether McIntyre’s attention-seeking instincts would have been constrained by a stricter code is debatable. His provocation was not unwitting. He went very deliberately in search of praise and rage.
Organisations have never before had to deal with such unforeseeable and uncontainable impulses before. It’s hardly surprising they are bad at it. Nor am I convinced that this arises from any monolithic economic power. On the contrary, even large media organisations are today deceptively weak and self-protecting, overstimulated and under-resourced.
The old boss of the Herald and Weekly Times, Jack Williams, used to say that the only free newspaper was a rich newspaper. The modern media outlet, unsettled by fickle publics and exsanguinated by digital vampires, is a pale shadow of its former self, its pre-emptive bullying disguising its existential doubts. Anything funded by the public exchequer, meanwhile, knows the pressures this brings in an environment of straitened budgets and competing interests. Bornstein acutely observes the paradox of universities, where free inquiry is ostensibly protected and employment terms have never been more tenuous.
Bornstein sees a further tension in the modern phenomenon of the reputation-laundering “woke corporation,” pointing to “an inverse relationship between a company’s stated exemplary values, on the one hand, and its conduct, on the other.” Egregious examples such as Qantas notwithstanding, I’m not sure that the relationship is that exact; what companies have gained from their flirtations with social justice and public causes is frankly questionable; indeed, one already senses a fading fad.
Most consumers choose brands for very basic reasons: quality, reliability, convenience, perceived status, prior experience, word-of-mouth reputation. Brands help them save time by guaranteeing uniformity of outcome; brands offer recourse in the event of unsatisfactory product or service. The feel-good factor of espoused values can operate only at the margin. Examples such as Amazon and Uber, with their egregiously exploitative labour practices, fly in the face of the idea that consumers care about how companies work; they care only that they do.
Bornstein rightly grounds freedom of debate in the bedrock of democracy. But democracy is messy. The American journalist James Fallows once called it an iron law of public discussion that the other side enjoys all the advantages and is accorded media favouritism. Something of the same applies to the debates that swirl in the social media sphere. Your rightness is always self-evident; your rivals are always base, deluded, conspiratorial. Your side is always disciplined and organised; the other side is always an online mob.
Yet it is difficult to defend freedom of expression without recognising the rights of others to respond in kind. Why should people not complain to the ABC? Why should campaigners in a particular cause not get together, share their grievances and act in concert? On matters of fact, everyone should be vigorously checked; but we will not nurture a plurality of views until we allow for their coexistence. That places an onus on employers that, I suspect, very few would feel comfortable with — but, y’know, that’s why they’re on the big bucks.
The most disarming section of Bornstein’s book concerns his position on Israel Folau, the footballer whose homophobic sentiments on social media resulted in his sacking by Rugby Australia for breaching those clauses in his contract that required him to foster “a safe, fair and inclusive environment for all” and “use social media appropriately.” Bornstein observes how left and right swapped clothes on the matter:
Progressives who had previously condemned the sackings of employees for expressing dissident left-wing views demanded that he be sacked for breaking his employment contract. Conservatives who had previously campaigned for the sacking of the same left-wing dissidents discovered a new commitment to human rights discourse, and condemned corporate overreach.
Bornstein oozes healthy contempt for the Ethics Centre, the Sydney-based reputation launderer often brought in to sprinkle holy water on corporate expedients, which placed the burden on Folau to “accept (or not) the relevant conditions of employments.” This was, as Bornstein explains, “pure sophistry — a severe penalty dressed up as a ‘choice.’” He put his principles to a public test by defending the rights of someone he profoundly disagreed with.
I also criticised Folau’s sacking in a television interview for The Project, arguing that determining complex moral and philosophical issues, including the bounds of acceptable speech, should not be the remit of corporations, but rather was the role of democratically elected politicians. I found myself in uncomfortable company: arguing alongside right-wing politicians and hard-right religious groups. I was aware that their invocation of human rights and free-speech discourse was disingenuous, and I tried to distinguish my position from theirs. Nevertheless I was widely criticised and pilloried by parts of the left.
Of course he was, because just as my enemy’s enemy is my friend in these tribal times, my enemy’s friend is my enemy. But uncomfortable company is okay. Uncomfortable company is not to be scorned. Uncomfortable company is what democracy is all about. •
Working for the Brand: How Corporations Are Destroying Free Speech
By Josh Bornstein | Scribe | $26.99 | 304 pages
