The termination of Brendan Eich – a big story earlier this month — raised important First Amendment issues concerning the boundary line between the right of individuals to engage in private political activity and the public interest in campaign finance disclosure. There is a tension between the two. The Eich affair tells us it’s time to take a fresh look at balancing them.
Prop 8 was subsequently invalidated by the courts, and the passage of time has changed popular attitudes. Today, same-sex marriage commands majority support in every region of the country, and in every age group.
But Eich’s 2008 contribution – like that of all contributors, pro and con, to the Prop 8 contest –remains a matter of public record. And publicity has its consequences. In Eich’s case, it was a career-ender.
Commentators may have differed on their attitudes toward his termination, but a consensus quickly emerged that this was a private matter between him and his employer, and, as such, beyond the reach of the First Amendment.
“At the risk of sounding pedantic,” wrote a commentator for Slate, sounding pedantic,
…[T]the First Amendment applies exclusively to state actors, like Congress or state legislatures, so a private corporation like Mozilla simply cannot infringe upon an employee’s free speech rights, even if it wanted to. There is no wiggle room around this point. It is a basic constitutional fact.
A commentator for National Review Online agreed that “this sordid and alarming little affair does not in any way implicate the First Amendment.” Andrew Sullivan, redoubtable champion of same-sex marriage but also one of the first to criticize Mozilla for its intolerance, conceded that Eich “wasn’t a victim of government censorship or intimidation…. He still has his full First Amendment rights.”
Well, no. Eich doesn’t have his full First Amendment rights. He never did.