In a column in the Wall Street Journal, Robin Keller, a partner at Hogan Lovells, wrote about being fired from the firm after a distinguished career of 44 years. Keller was not fired for intermingling funds or violating confidentiality of clients. She was fired because she exercised free speech in an internal meeting on the Supreme Court’s decision in Dobbs v. Jackson Women’s Health. After Keller expressed her support for the opinion and concern about higher rates of abortions in the black community, a participant complained that she could not breathe and others called her a racist. She was later suspended and reportedly fired.
What is striking about this controversy is that there is not a great deal of disagreement on what was said at the meeting. Take Above the Law, which Keller references in her column. The site has become one of the most vocal anti-free speech sites on the Internet. It recently even defended the virtual elimination of conservative and libertarian faculty at universities as commendable.
In a column entitled “White Counsel At Biglaw Firm Spreads ‘Inappropriate And Offensive’ Theories About Abortion, Gets Suspended,” Kathryn Rubino celebrated the “welcome consequences” for people who share dissenting or unpopular views on such subjects. Rubino expressed disbelief that “a white partner who attended HoLove’s women’s meeting felt it appropriate to chime in with her support of the Dobbs decision.”
Lawyers at the firm demanded the firing of Keller and said that they were “traumatized” by having to hear someone defend the decision on a call to allow people to discuss the decision.
Let’s repeat that again . . . these are lawyers who were traumatized because a colleague expressed a dissenting view of abortion, a view held by millions of other Americans as well as many judges and justices. It is a view that has been expressed widely in the media, including by African-American and female commentators.
I can understand how such arguments can insult or enrage others. Pro-life lawyers can also be deeply offended on the other side by pro-choice arguments. Abortion is an area that has torn apart this country for generations. The addition of race only magnifies the passion and anger in such discussions. However, this is an area that raises difficult constitutional, social, racial, economic, and gender issues.
Yet, rather than engage Keller on why they believe that she is wrong, these lawyers asked her to leave the call and then pushed for her to be fired for expressing her views. As we have seen on college campuses, it has become commonplace to seek to silence others rather than to engage them in such debates.
As Keller wrote, “I was invited to participate in what was billed as a ‘safe space’ for women at the firm to discuss the decision. It might have been a safe space for some, but it wasn’t safe for me.”
She recounts how “Three weeks later I received a letter stating that the firm had concluded that my reference to comments labeling black abortion rates genocide was a violation of the antiharassment policy.”
The firm adopted the usual “we support free speech but …” rationalization:
“Firm leaders promptly reached out to the firm community to express their regret about the pain and upset that this has caused our community. We appreciate that this was brought to our attention and we are treating this matter seriously. While we encourage members of our community to engage in frank, candid discussion, we expect all discussion in our place of work, or in settings sponsored by the firm, to uphold our values of inclusivity, respect for diverse members of our community, and non-discrimination.”
We have seen corporations joining a campaign targeting Twitter over the plan of Elon Musk to restore free speech protections on the site. However, this is a law firm yielding to demands to silence a colleague for expressing a dissenting view on Dobbs and the impact of abortion in an internal meeting on the decision. To state opposing views in a forum on the case is now considered harmful and harassing — and a basis for termination.
That is certainly a “consequence” but it is hardly “welcomed” if you have a modicum of concern for free speech values. Private firms and companies are obviously given a wider leeway in the limitation of free speech rights. As I have previously written, workers do not have a legal right to protest or display political symbols in the workplace.
For years, anti-free-speech figures have dismissed objections to social media censorship by stressing that the First Amendment applies only to the government, not private companies. The distinction was always a dishonest effort to evade the implications of speech controls, whether implemented by the government or corporations. The First Amendment was never the exclusive definition of free speech. Free speech is viewed by many of us as a human right; the First Amendment only deals with one source for limiting it. Free speech can be undermined by private corporations as well as government agencies.
Yet, we have seen reporters and lawyers rally to the cause of censorship or speech controls in recent years. It is the subject of my recent publication in the Harvard Journal of Law and Public Policy. The article entitled “Harm and Hegemony: The Decline of Free Speech in the United States.”
That alarming trend is no more evident than lawyers saying that they “cannot breathe” in the presence of the exercise of free speech.