xkcd 1357 is the famous “Free Speech” meme about how getting banned from a Facebook group or college campus doesn’t count as a violation of free speech because, legal reasons:

This xkcd is from 2014, and it had the right take for the Tea Party/Obama era, when the Free Speech Defenders™ were mainly interested in using their First Amendment rights to espouse racism and homophobia. It made sense to provide some pushback and point out that people should be able to create little private enclaves where they can police speech a bit more aggressively.

Unfortunately the world has shifted, and the problems have shifted. These same transactional exceptions to free speech (“Sure, you can say that, but I will impose X consequence”) are now leveraged against people who don’t suck. I think this makes it clear that xkcd’s allegiance to the letter of the law in 2014 was a bit shortsighted, and lacked reflection on why we actually have a First Amendment and what we are actually trying to protect.

In my opinion, in 2026, we … don’t really have free speech. Maybe we have it in a narrow, legal sense—your boss can’t say “You’re fired and by the way it’s because of your political beliefs.” But I don’t think we have real free speech of a form that would impress any of the Enlightenment thinkers.

There was a viral post recently called “Being kicked out of the tech industry.” TL;DR, OP has been laid off from every job and is struggling to find a new one. These posts are, unfortunately, getting more and more common and I will not attempt to contradict the broader reality that the job market in tech kinda sucks right now. Nor do I find “kicked out” guy to be 100% sympathetic–actually, his post evinces a strong tendency to blame others for his circumstances and he comes across as a bit hardheaded and difficult to work with (just my intuition, sorry).

However, someone in the lobste.rs comments managed to write a response to the post that attacked it in, IMO, the most soul-crushing way possible. “I would probably never be able to hire you,” went the comment, because you post too much about politics on your blog. Not “during working hours,” not “using company IT,” just: “your website.” “Sorry no one told you before,” the commenter concluded.

(Seriously, what’s with the epidemic of this narcissistic, condescending tone online? You see it in both sides here. “never be able to hire you” dude, just say you wouldn’t hire him, no need to play the stupid “my hands are tied” game.)

This is pretty sad, right? In my opinion, if you can’t post your political beliefs without risking unemployment, you don’t have freedom of speech. I don’t care if the law doesn’t technically protect kicked-out guy because the politics weren’t cited explicitly in rejecting him; that’s a problem with the law. This is a clear case of society failing to create the kind of open commons necessary in a free society.

And by the way, reforming the legal implementation of freedom of speech doesn’t have to mean nobody can have safe spaces of the sort portrayed in the xkcd. The point is to pursue a middle ground between utter free speech absolutism and “free speech winter,” which is what we currently have, where everyone’s afraid to speak their mind because they don’t know what the consequences are anymore. Don’t even get me started on the abysmal speech policing of immigrants, who aren’t even covered by the fig leaf of legal protection offered by the First Amendment.

Right now it’s easy to make this argument because we’re in a right-wing moment, thus it seems especially urgent to protect the speech rights of those not in power, i.e. the left. But in a few years (🙏🙏🙏🙏) the pendulum will swing back, and we need to remember not to fall back into the xkcd 1357 trap of assuming that the legal framework is exactly as strong as it needs to be.

OK??