Wednesday, April 22, 2015

Free Speech Rights in the Workplace

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I recently came across the following while looking through some old homework from my undergraduate days. It was a piece on First Amendment protection of free speech in the workplace. A lot of people try to cite the First Amendment in cases where an employer has attempted to silence an employee, and it simply does not apply in that case. The government has not passed any bill restricting your speech, your boss told you to shut up. What I had forgotten about was the amount of case law showing that the First Amendment does not necessarily apply against your employer even in the instance where your employer is the Federal Government.

This was written in November 2010, so take the part about the "Don't ask, don't tell" policy with a grain of salt today.

Free speech rights are established by the First Amendment to the United States Constitution, which is a part of the Bill of Rights. This amendment prohibits Congress from making any law which infringes on a citizens right to free speech, as well as providing the same protection towards religion, press, peaceful assembly, and petitioning the government. Some of the most distasteful speech, that of the Ku Klux Klan, has been protected. While there are legal limits to free speech, there must be a legitimate reason. For example, you cannot walk into a crowded room and scream fire, as this can pose a great safety concern to everyone in the room. Noise ordinances also continue to stand in many communities.

So does the First Amendment protect your free speech rights against your employer? The simple answer is no, it is not relevant at all to your employer as long as your employer is not guilty of discrimination against any protected group. In the majority of states, employment is considered to be “At Will” unless otherwise stated in writing, for example, in an employment contract. What this means is that your employer may terminate you at any time, for any reason. The only protection that you have is that you cannot be fired for reasons that have been made illegal under state or federal law. Examples would be being fired based on your religion or race.

Even if your employer is the United States government, your free speech is not protected against your employer. For example, Army Regulation 530-1 requires all blog posts or documents being posted on-line by military personnel to first be cleared by a commanding officer before being posted (Shachtman, 2007). In the case of Connick v. Myers, the Supreme court ruled that the government may fire an employee for speech at work, in this case distributing a questionnaire regarding an internal office topic (UMKC School of Law, 2001). And in the well known “Don't ask, don't tell” policy, any openly gay or lesbian person is subject to immediate discharge from the United States military.

And in the private sector, the courts have defended employers restricting the speech of their employees. In Smyth v. Pillsbury, Michael Smyth was fired for statements made to his supervisor regarding the company and sued for wrongful termination. The court found in favor of Pillsbury (Darrell, 2010). In the case of Bourke v. Nissan, the court found in favor of Nissan terminating both Bonita Bourke and Rhonda Hall for comments made by the two over company email. Interestingly, Mr. Smyth's email comments were made on his own time (Darrell, 2010). While both of these cases were brought for invasion of privacy, the issue was statements made in both of them. And in another example, long time NPR News commentator Juan Williams was fired after comments he made about Muslims while a guest on the Fox News Channel (Folkenflik, 2010).

Your First Amendment rights are not protected against your employer. While the First Amendment does indeed protect your free speech rights, it only protects them against laws passed by the United States Congress. Even if your employer is the United States government, your free speech rights may be limited at work. Michael Smyth, Bonita Bourke, and Rhonda Hall were all terminated for statements that they made, and the courts have sided with the employers.


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