Editorial: Due process still matters, even for rioters who stormed the Capitol

Failure to wear masks can do more than spread COVID-19, as some of the intruders who stormed the U.S. Capitol last week are finding. It also reveals faces to security cameras, government investigators and online private eyes, who’ve used those bare visages and other telling clues to identify many of the miscreants. As a result, not only have many of them been hit with criminal charges, but several were summarily fired from their jobs.

As a group, the mob inside the Capitol certainly was breaking the law in the most serious of ways, attempting to stop the workings of government and possibly to physically attack members of Congress. But no one has been convicted. It puts our society in a tricky position: We need to repudiate and take strong though appropriate steps against those who act violently toward our government. At the same time, we have always cherished the words “innocent until proven guilty.”

Beyond that, some employers have reportedly demanded resignations from employees who were outside the Capitol, rallying, marching, sometimes saying abhorrent things and parroting President Trump’s baseless nonsense about stolen elections. Among them was a Chapman University professor, John Eastman, who was one of the speakers at the rally. More than 160 Chapman faculty members signed a letter calling for the university to end Eastman’s teaching duties and take away his endowed professorship. The university refused, citing the rules on academic freedom and faculty discipline that forbid such a step. Nonetheless, Eastman resigned under pressure Wednesday as the anger against him mounted.

The firings have even struck those who protested the protesters. An employee at GitHub reportedly was fired after using a company Slack channel to refer to the rioters as Nazis. Yes, personal use of company resources is not allowed, but it’s unlikely that this employee was the first ever to do so there.

In tightly strung times when people are bound to do things that others find highly objectionable — and to be caught on social media or someone’s cellphone doing it — we’re left with complicated questions about when they deserve to lose their livelihoods.

It’s seldom a legal issue. In most states, private employers retain broad power to fire an employee for pretty much any reason, as long as they don’t discriminate against a protected group, punish some employees more than others for the same actions or violate an employment contract. California is among the very few states that prohibit companies from taking action against employees for political speech or activities.

But just because private companies can do something doesn’t necessarily mean they should. There might be photos of people in the Capitol, but were they among those causing damage or threatening violence? If they weren’t and are never charged, are their actions nevertheless horrifying enough to merit loss of job? Did they break through barriers rather than blindly following others who did? Are they ever convicted of anything?

Not that the answers to these have to be yes before a company has cause to act. If an employee was in the Capitol with his company badge visible or was filmed causing mayhem, it doesn’t take a court of law to know that a line was crossed. If an employee didn’t know darn well that you don’t push though lines of law enforcement officers in order to pour into a building that’s been closed to the public, that’s not exoneration.

But we add to, rather than soften, the damage done to our system of laws if due process is completely ignored. Employees should at least have the chance to be interviewed about their actions and offer a response. Extremist groups react without waiting for the facts or listening to others. It only erodes society’s notions of fairness if companies emulate them.

And those who remained outside and did not break the law should keep their jobs — yes, even if the words they spoke were toxic and even if a company is pressured by a boycott — unless they broke some other company rule, such as claiming a sick day in order to protest while on the payroll. That should apply whether the employee is a professor or a mail clerk. All states should join California in protecting employees’ right to political speech outside the workplace as long as their actions don’t directly affect their ability to do their jobs. Our wallets shouldn’t rule our freedom of expression.