Josh Bornstein asks how our major corporations have come to exercise repressive control over the lives of their employees, and explores what can be done to repair the greatest threat to democracy — the out-of-control corporation.
When you go to work, you agree to exchange your labour in exchange for your pay packet, right? Actually, you may not realise it, but you are also selling your rights to free speech and to participate in democracy. Welcome to corporate cancel culture, a burgeoning phenomenon that is routinely ignored in debates about free speech. If you work for a large company, it will not allow you to say or do anything that harms its brand — at or outside work. If you transgress and attract controversy — whether for cracking a joke, a Facebook like, or a political post on TikTok, you can be shamed, sacked, and blacklisted.
In the twenty-first century, major corporations have become the most powerful institution in the world — more powerful than many nations. That unchecked, anti-democratic power is reflected in the gaming of the political system, the weakening of governments, and the repressive control of the lives of employees. While their behaviour has deteriorated, corporations have invested heavily in ethically washed brands, claiming to be saving the planet and doing good. As Josh Bornstein argues, we would not tolerate a government that censored, controlled, and punished us in this way, so why do we meekly accept the growing authoritarianism of the companies that we work for?
I enjoyed this book, but it really feels like it needed a good edit. From the title one would assume the book is mostly about how large corporations justify dismissal by reference vague policies and codes of conduct which stifle fundamental rights. This only covers 60-70% of the book, and the rest is general commentary on the asymmetry of employer-employee relations. Not necessarily bad, but didn’t really align with my horizons of expectations for the contents (really would’ve liked some more in-depth legal analysis given how successful the author has been as a practitioner)
Anyone who has worked for a major company, particularly in the listed space, may find themselves frequently nodding in agreement while reading this account by Melbourne employment relations lawyer Josh Bornstein of the increasingly far-reaching powers of corporations to control free speech.
As suggested by the title of the book - 'Working for the Brand' - Bornstein is concerned with what appears to be a new kind of feudalism growing out of modern neoliberal capitalism, where corporations exercise extraordinary surveillance and control over the lives of their workers.
Where giving half of one's waking hours to paid work was once considered all one owed to an employer, workers are now routinely expected to keep their employer's 'brand' in mind any time they express an opinion outside work - on social media, in their community or even at the pub.
Those who openly express 'controversial' views (usually defined as those that upset a powerful interest group or that touch on culture wars mined by populist media) will often find themselves censured, threatened and even sacked for daring to have an opinion.
Many of the examples of 'corporate cancel culture' in this book will be familiar to any Australian who regularly keeps up with the news. But the cumulative effect of Bornstein's forensic analysis of the intensification of corporate power in recent years is genuinely disquieting.
One of the first cases he cites highlights how someone's entire life can fall apart just because they had the temerity to express a view on a public subject that had absolutely nothing to do with the job. Scott McIntyre, a sports reporter employed by public broadcaster SBS, issued a series of Tweets on Anzac Day, questioning some of the myths surrounding a festival that in recent years has been turned into a jingoistic celebration of the worst aspects of 'oi-oi-oi' Australian white nationalism.
The response to McIntrye's Tweets, issued on his day off, provided a textbook case in how rotten the so-called 'public square' of social media has become. He received death threats, was subject to a Murdoch tabloid media pile-on and ended up being sacked at the intervention of the Prime Minister, no less. He and his wife had to leave the country to try set up a new life in her native Japan, where his marriage eventually fell apart and he lost custody of his children.
This was all despite the fact that the Fair Work Act of Australia upholds the right of Australian employees to hold and express political opinions and protects them from being sacked by reason of those opinions. Had McIntyre been a political reporter, there might have been an argument for him being censured by his employer and asked to issue more care with his social media activity. But he was a football correspondent and was tweeting on his day off.
"If employees are required by their employment contract to never express views privately - or, at least, outside their working environent - that might offend anyone or result in a controversy, they have forfeited important democratic and human rights. They have forfeited a crucial part of their citizenship," Bornstein writes.
How did it get this bad? How did companies, at a time when many people grumble about the 'nanny state' or government power, get away with treating their employees like virtual chattels? In the US, where the worship of the 'free market' has reached virtually religious dimensions, companies can do virtually what they want- subverting labour standards, suppressing wages, policing toilet breaks, monitoring their staff's social media posts and conducting out-of-hours surveillance.
Part of it is technology, Bornstein writes. Companies do these things because new types of technology enable it. Part of it is the neoliberal ideology that has prevailed in western democracies now for 40+ years, an ideology that marketises every inch of our lives and skews employment law and bargaining power overwhelmingly in favour of companies. And part of it is because corporations have become much more mindful about their 'brands', which they seek to launder by bogus commitment to noble causes like diversity or sustainability. Workers are expected to embrace such 'purpose-driven' initiatives, not for the sake of the cause but to protect the company's bottom line.
This was seen notably in Australia in recent years with Qantas, under the now departed long-time CEO Alan Joyce, who while committing the company to fashionable causes, was increasingly screwing his workers, undermining their conditions and contracting out key activities to the point where he was widely seen as wrecking the airline's once pristine brand.
"Alan Joyce trashed the Qantas brand, was feted and fawned over, and became very rich. But when a lowly employee attracts controversy, it's often a different story, "Bornstein writes. "Invariably, hyperbolic claims of corporate brand damage are asserted at high levels internally to justify the sacking of an employee who has engaged in controversial speech. Those same assertions of catastrophic brand damage are rarely interrogated, either in courts or tribunals or in the court of public opinion."
Another aspect of corporate sensitivity to controversy is through the power of an organised pile-on or intimidation by a small, but well-resourced, interest group. We have seen this most visibly in Australia with the high-profile case of journalist Antoinette Lattouf, the daughter of Lebanese refugees, who was sacked by the ABC three days into a five-day summer contract announcing gig after she shared on her social media account a news item from a human rights group expressing concern at the treatment of Palestinian civilians in Gaza by Israel. It turned out a group calling itself 'Lawyers for Israel' had applied pressure to ABC management even though it later admitted she had not breached the broadcaster's social media policy.
"Contrary to the denials, the ABC had applied brand-management orthodoxy," Bornstein writes. "It panicked and capitulated to a loud mob. It established a new, invidious benchmark for panicked brand managers: Lattouf was sacked for posting a fact."
But Bornstein, a Jewish liberal himself, doesn’t just stand up for those espousing progressive causes. He also goes into bat, for conservative voices - like ostracised sports star Israel Folau, who was sacked by Rugby Australia for expressing his religious views against same sex marriage. As Bornstein says it makes it hard to defend those who are sacked for progressive views (like Latouff) if one is joining the pile on over Folau, who is nevertheless entitled to express his beliefs however offensive they may be to some.
"Progressive cancel culture can be extraordinarily puritanical and punitive," he writes. This lets corporations off the hook by allowing them to coopt identify politics ('we are committed to diversity') so as to avoid dealing with the ongoing transfer of wealth and power from labour to capital that has dominated western democracies since Reagan and Thatcher.
In turn, Borstein writes, those who don't have a tertiary education, wealth, secure housing or a regular job feel shut out out of these identity politics issues and so shift their allegiance to authoritarians like Trump or Orban or Modi or Bolsanaro. In other words, progressives who are consumed by identity issues surrender the ground to reactionaries who stoke resentment against minorities and immigrants, and pose as friends of the 'ordinary people' against 'the elites'.
I’m not sure what will change this increasing encroachment by companies on the lives of their employees, but I like Bornstein’s suggestion towards the end of the book - a proposed letter that companies could send to pressure groups who take exception to something an employee said on Facebook that has nothing to do with their business:
“We sell goods and services for profit. We employ many people who harbour a range of values and views. We support our employees’ fundamental right as citizens to participate in debate and other forms of civic life, including by expressing unpopular views. Their views are their own. They don’t speak for the company. We will not censor, sack, or discipline them for exercising their rights.”
That's it. But it will require more than a standard letter. It will require, as Bornstein argues, the reining in of corporate power and the restoration of the democratic rights of workers and citizens.
For all the right-wing nationalist backlash we are seeing at the moment, one does sense some progressive pushback. We see that in the rise of independent politicians, growing cynicism about ethical brand-washing by corporations and a rising feeling that companies should get their noses out of their employees' lives.
I enjoyed some passages /chapters, but others left me very frustrated.
The main issue for me is that the book is severely lacking in citations and riddled with bare assertions and seemingly irrelevant asides (take, for example, the throwaway line on page 262 to the effect that a relaxation in work health and safety laws during COVID enabled abattoirs in the US to operate, and that “many workers at those abattoirs subsequently died of Covid-19.” Unreferenced.)
The other disappointment for me is as that despite Bornstein’s role as an experienced and high profile litigator in this space, he fails to offer any real legal analysis, or insights as to what reform might look like. The legal intricacies and sticking points of the cases he’s been involved in were skated over in favour of emphasising either the unjust trauma of his unsuccessful clients, or righteous victory of his successful ones. It is a shame that someone who is perhaps uniquely well placed to offer a perspective on how Australian employment law could best be adapted to properly balance the right of a business to protect its reputation (and the interests of its employees, who may not wish to work for it someone who has espoused awful views) with the fundamental right of the individual to express their views, failed to genuinely grapple with this difficult problem.
As other reviewers have observed, the book strays some distance from what its subtitle suggests - corporate incursions on freedom of speech - into the author’s broad views on politics and the state of democracy in just about every major economy in the world (and several long diatribes on the importance of unions). I would have preferred a much narrower lens, focused on the topic Bornstein knows best, and with sharper legal analysis.
I practice in Australian employment law, as Josh Bornstein does, and I find this book to be a good overview of some key issues in this practice area that motivate what I do. I would definitely recommend it for that purpose.
I find it an especially good talking point that the real 'cancel culture' that affects the majority of people is the brand management and overreach of their employers and employment contracts.
The book's theme was explored in a few interesting contexts including the implications for specific professions such as journalism (and, I would note for myself, lawyers), the chilling effect on free/political expression, inappropriate encroachment into romantic relationships, etc. I disagree that any chapters went wildly off-topic, and people seem to take umbrage with some fleeting asides that they personally politically disagreed with. I don't agree with everything in here, but that just isn't an accurate reflection of the editing of the book.
It should be noted that confidentiality obligations prevent in-depth discussion of particular cases and clients Mr. Bornstein has encountered. However, I would have to echo other sentiments in that I expected more legal analysis from this book given the author's pre-eminence in this practice area. This may be a problem with my expectations as someone very familiar with the subject matter, but it is my feeling nonetheless.
There were a couple of sloppy bits which I knew to be factually incorrect (a section on the BBC that discussed events surrounding Covid-19 in 2020 and said they happened in 2018…)
There is a section on the TERF wars which suggests trans activists only engage in vilification and abuse of TERFs and don’t campaign for legislative reform which is manifestly false. The reason that trans activists do any campaigning at all is because they are either seeking to protect rights that trans people have hitherto enjoyed, or ensure better care and treatment by health authorities and the law.
There’s also a section where he references the pop philosopher Michael Sandel as having come up with the concept of a transition from Market Economy to Market Society which is… at least 80 years older than he thinks it is - coming from Karl Polanyi.
But as I say, its central argument is unimpeachable - employers extend their control over employees well past clock-off time, and are the final arbiters of freedom of speech whether it’s legal or not, and too often the courts and the government agree with them.
I finished this book in one sitting and it never dragged. Bornstein addresses several facets of corporations’ encroachment on individuals’ fundamental civil liberties, the forces underpinning this action and its fundamental hypocrisy. It is fascinating and of tremendous importance. I disagree very slightly with some points made about identity politics, but these are very minor quibbles - the core theses of the book are extremely convincing. Much of what I learned depressed me. I had no idea that Amazon, on top of its egregious violations of worker rights, emits more carbon than Portugal. Hey, come to think of it, doesn’t Amazon own Goodreads? They’ll probably send their evil henchmen my way before I even finish typi
Really enjoyed this. An Australian perspective, with recent examples (including authors own), not only gives background but also the aftermath on the individual (that we DON'T hear about), also the reasons behind the online pile ons. He also explains how we're in the 'corporations clutches' (my words) by signing up to employment contracts that are draconian & how employees have little choice or power. Whether or not you agree with the person being 'fried' is beside the point. (I don't agree with all the viewpoints of the examples he gives). He ends the book with what should be said. And OMG Brand Managers!!!! Excellent and thought provoking.
An engaging idea, and an ideal author to explore it. Bornstein writes with passion and authority. However for me, the book too often ventured into adjacent topics: the poison of neoliberalism, corporatism, identity politics… all valid arguments but lightly touched on and all covered by others in more depth. This piece would have been better with more discipline and digging deeper into the intriguing case studies
I really love Josh’s work and advocacy, and this book was great. I would have liked for him to expand more on the differences between Israel Folau’s hate speech and free speech as with Israel- he was actively stating queer people would burn in purgatory, and should do so due to their sexuality which is quite different imo to having non-hateful opinions that mightn’t be congruent with the “values” your employer has
Interesting case studies, which for me, was the strength of the text and these case studies would have been improved by deeper analysis. Overall though, the argument was not clearly articulated. It is not a forensic study as the book presents too much breadth and not enough depth; Bornstein’s summation of Milton Friedman’s theories was economics for dummies.
Didn’t actually finish this book- it was too depressing. Read about 3/4 - the discussion about cancel culture in the age of social media was the most interesting for me. I’m retired recently thankfully don’t have to work for a brand anymore. Even working in a public hospital the code of conduct issues became increasingly like being a student in a private school. But Josh had no hope.
The only criticism I can levy is that the book is perhaps mistitled - this is a broader piece (in a very compelling way) than being just on how corporations quash freedom of speech.
I understand that Australia mimics America in pop culture and politics. However, I would have loved for Josh to focus just on Aus. As I felt, the America case studies took away from what's happening here, in Aus.