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.
Brendan Eich you will recall (the news cycle moves so swiftly these days) is the geeky pioneer and inventor of Javascript. He was forced to resign after only ten days as CEO of Mozilla. His sin was donating $1,000 six years earlier to support California’s Prop 8, a ballot initiative which deemed marriage as an institution between a man and a woman. In 2008, when Eich made his donation, that idea commanded the assent of every Presidential candidate, including Barak Obama and Hillary Clinton. Prop 8 was approved with 52% of the vote.
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.
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