But I can already hear the inevitable retort: Sure, Mozilla wasn’t literally trampling on Eich’s First Amendment rights, but it was violating the broader principles of free speech and free association. This argument is strikingly one-sided and opportunistic. Corporations like Mozilla, for better or worse, are also endowed with significant rights of free speech and free association—for instance, the freedom of Mozilla’s board and leadership to condemn Eich’s anti-gay actions. And make no mistake: Freedom of association includes the freedom of exclusion, particularly the freedom to exclude from your private organization an individual whose conduct is inconsistent with your values. Mozilla’s decision to seek Eich’s resignation implicates the same First Amendment principles that famously allow the Boy Scouts to exclude gay troop leaders.
Oddly, however, I don’t see defenders of Eich also criticizing the Boy Scouts for excluding gay men because the organization disagrees with their conduct and beliefs. Nor do I even see conservatives taking Mozilla’s rights as a private corporation seriously—a predictable hypocrisy made especially obnoxious in light of last week’s widespread right-wing praise of the corporate plaintiff’s claim in Hobby Lobby. This is the conservative double standard in the realm of corporate rights: When the corporation supports a right-wing pet project—say, denying women reproductive care—conservatives pen encomia to the First Amendment’s corporate protections. But when a corporation dares to support a progressive cause like gay rights, conservatives cry foul at its alleged censorship of individual views.