The US constitution protects controversial speech, in the sense that government punishment is not meted out to people who step out of line. The limits of this are immediately apparent when you ask if people functionally have the ability to speak freely from within US institutions of academia, journalism, or large corporations. I work with colleagues in all of these from all over the world, and nobody is more afraid of saying the wrong thing and having their lives ruined than Americans. The fear is palpable and ever-present. So again, how successful has the first amendment really been here? The frequent response to this is "freedom of speech is not freedom from consequences", which is exactly the kind of legalistic attitude we have to get away from. Real freedom of speech means exactly the ability to say controversial things without suffering disproportionate harm, and I just don't think the US is doing markedly better than the rest of the free world on this front.
I'm not sure where this perverted view on the freedom of speech comes from. It has never meant freedom of consequences or criticism which is what "free speech absolutists" of today are seeking. To say otherwise would be to force people to associate with others. You're going to force a business to keep an employee who is damaging their reputation or hurting team morale. You're elevating the rights of trolls to the point where it infringes on the rights of others specifically the freedom of association. Free speech absolutists want a captive audiences who cannot disassociate with them and force companies to host content that is damaging to their brand. They have no respect for the speech of others in the form of protests which they label as "cancelling" and rail against despite it also being free speech.
I'm not talking about free speech absolutism. What I'm describing here is a specific US-centered cultural phenomenon - thin-skinned, hypocritical tribalism that has turned people against each other, where every conversation that strays outside of narrow doctrinaire bounds, however innocuous or well-intentioned, might be reported on by a remorseless army of cruel snitches ever hungry to find some way to elevate themselves by destroying others. It's the very opposite of being kind or considerate, and, having seen its effects on colleagues, I can't imagine anything more damaging to "team morale". Freddie De Boer has a pungent phrase for this - "planet of cops" - and his essay is worth reading:
I feel focus on the first amendment gives people of this bent cover: it lets them exert incredible power over speech in every practical way, while claiming that free speech is intact because there's no violation of the constitution. The fact that we need to clearly rebut people like this is exactly one of the reasons why I feel over-indexing on the constitution is unhelpful.
Businesses don't have freedom of association. For example, in California, the "ban the box" law means that FANG must hire convicted domestic abusers even if it is bad for morale. This of course pertains only to past actions of the applicant though.
This is very interesting! How did the FANG in your hypothetical find out about the person being a convicted domestic abuser? The law says they are not allowed to ask about prior criminal history which is not relevant to the job itself, so it would be interesting to know how these pieces of information come to light.
I'll leave the question of "should a person be branded for life even if they've done everything they can to make things right" for the reader.
