In a previous post, I described the implications for all of us if Tucker Carlson has gagged himself by signing a "non-disparagement agreement" (NDA).  But NDAs are not the only method available to unethical media companies, universities, churches, and others to silence those who speak a bit too much truth.

Many contracts now contain Mandatory Arbitration (M.A.) clauses, often disguised, requiring that "employment disputes" be adjudicated in secret by private arbitrators.  These can serve legitimate business purposes, by avoiding costly litigation.  But they can also be used for concealment, and this is especially detrimental in fields like journalism and higher education, where free speech is essential.

Here again, the dismissed have no recourse to publicity, because the M.A. keeps everything secret.  They are instantly cut off from their salaries, courts, grievance procedures, oversight bodies — and, most importantly, collegial and public opinion.  They can seek redress only in a secret commercial proceeding consisting not of professional colleagues, but of lawyers, who can be counted on to suppress ethical issues.  Proceedings are closed and without record, and public disclosure can be legally punished without any apparent limitation.

Here, too, the mechanisms used to conceal are themselves concealed, and the deeds of which the employers are ashamed include using the methods of concealment.

While M.A. may serve legitimate business purposes, even there the departure from accepted legal procedures and ethics, including due process protections, is breathtaking.  Arbitrators (enjoying legal immunity) have no limits on the awards or punishments they can inflict, including unlimited punitive damages and lawyers' fees.  Nothing requires that they follow the law, yet their secretive decisions are enforced by civil (and even criminal) courts with no opportunity for challenge or appeal.  One firm (used by conservative Christian colleges) operates using rules that include these departures from standard principles of justice:

• Proceedings are secret, with participants bound to silence.
• No record or transcript is permitted.
• No access by public, press, or family.
• No protections for contractual, statutory, or constitutional rights.
• Decisions are legally binding and enforced by courts before which parties cannot present their case.
• No appeal is permitted.
• No jury trial is permitted.
• Rules of evidence are explicitly discarded.
• Participation is not voluntary or consensual; proceedings can be initiated against parties without their consent.
• Proceedings cannot be stopped, and one cannot withdraw.
• Decisions, damages, and punishments can be rendered in absentia, without parties present to defend themselves.
• No limits on arbitrators' rulings, their scope or relevance to merits, issues, or facts.
• Damages and fees can be imposed without any finding of legal culpability.
• Arbitrators are not required to explain decisions or record evidence.
• Unlimited fees can be imposed on parties who can be prevented from presenting their side of a case, including defending themselves, until fees are paid.
• No separation of powers or checks and balances in arbitrators' selection or powers.
• Procedures are vague, ambiguous, and self-contradictory and involve demonstrable intention to deceive.
• Decisions can be based on principles other than legal ones, such as religious precepts.

Arbitrators can even issue restraining orders carrying criminal penalties.  This constitutionally questionable weapon places legally innocent people under immediate penal supervision.  A personalized criminal code is legislated around a legally unimpeachable person, imposing criminal punishments for doing what no statute prohibits and what anyone else may do without penalty.  Punishments include mandatory incarceration without trial, even when the infringement is inadvertent or unavoidable, which it may be, since it criminalizes only otherwise legal acts.

Despite enormous potential for injustice, M.A. now constitutes a vast privatized judiciary that "has largely displaced the civil justice system for most of the major transactions of ordinary people."  Again, all this may be defensible in a business context, and it is defended on the presumption that arbitrators' business depends on a reputation for impartiality.  Yet the incentives and ethics governing business disputes are irrelevant in matters where free expression is essential.

Journalism and scholarship bring into play more serious dynamics, because of M.A.'s greatest asset to employers: secrecy.  The heterodox can be airbrushed out of an institution, gagged, and placed under legal liability for public speech.  Ethical principles become subsumed into an "employment dispute" that excludes everyone but lawyers from any role, where larger ethical requirements are irrelevant and about which the wider world will never know.

Instead, lawyers "settle" everything in secret arbitration.  Regardless of material awards, the employer wins the important battle before the procedure ever begins, because the secrecy guarantees to keep its reputation intact, regardless of how unethical its actions.  M.A. cannot rectify ethical violations because enabling and concealing those violations is precisely the purpose of the procedure in the first place.

Even if dismissed employees decline to use the arbitration to claim damages for unjust dismissals, they cannot be certain that any public utterance will not trigger an arbitration procedure against them by the employer.  In absentia, it could seek punitive damages, and no rules limit the amount.  Theoretically, the arbitrators could empty a journalist's or professor's bank account, seize his pension, force him to pay the institution $1,000 (or $1,000,000) a month for the rest of his life, plus unlimited legal fees, and even issue a restraining order adding criminal penalties (without criminal protections) for disclosure.

Why would arbitrators act so unjustly?

In journalism and university education, material settlements are trivial compared to the procedure itself.  The arbitration firm is selling the power to silence and intimidate people.  It offers employers a no-lose proposition: you may have to pay some nominal damages, but your reputation is guaranteed to remain intact so long as the whistleblower can be kept quiet.  Given the lack of restraints on punishments described above, the firm has both the means and incentives to collude with the institution and twist the knife on any recalcitrant journalist or faculty member who dares to hit the employer where it really hurts, by exercising his authority as a public voice to damage its reputation for integrity, however truthfully.  Criticizing the employer's ethics, including the arbitration procedure itself, undermines the firm's entire selling point.

Whether the arbitrators would act as ruthlessly as the procedures permit, the open-ended possibilities (and the undisguised absence of justice) provide an unmistakable threat that will intimidate anyone contemplating criticizing the firm or institution.  When your aim is to stop someone's mouth, the threat is everything.

Here again, the dismissed cannot even vindicate their own reputations, because divulging the larger ethical or political issues behind their dismissal (to a prospective employer, for example) could bring retribution.  (Few will believe the favorite pretext of "budget cuts.")  Suspicion of having signed an NDA and accepted "hush money" may also compromise one's professional integrity.

* * *

All this might not be a problem for someone of Tucker Carlson's stature.  Then again, it is possible that Fox News has some such legal leverage over him — if not the ones I have described, then some similar ones that we do not yet know about.  These devices are new and secretive enough that he could well have signed an employment contract containing an NDA or M.A. without realizing the full implications.  If so, his wealth and public profile would protect him only so far, because the whole purpose is to allow the employer to inflict devastating destruction on dissenters and whistleblowers.  A Mandatory Arbitration session could simply confiscate everything he owns and place him under a restraining order that could send him to prison for life.  Such injustices and worse already happen in America's judiciary, the depths of whose depravity defy comprehension.

Even if he survived such retribution, the rest of us might not.

Stephen Baskerville is Professor of Political Studies at the Collegium Intermarium in Warsaw.  He writes about the politics of the law and other topics.  Points in this article are documented in a paper published by the James G. Martin Center for Academic Renewal.

Image: Pezibear via Pixabay, Pixabay License.