Can your boss fire you for expressing your views on social policy, participating in a political party, or donating money to an unpopular political cause? Polls indicate that many Americans believe the answer is no. After all, the right to free speech is among our most deeply ingrained civic values. We repeat, and cherish, the aphorism: “I can say what I like. It’s a free country.”
In reality, however, American employees’ free speech rights may be more accurately summarized by this paraphrase of a 1891 statement by Oliver Wendell Holmes, Jr.: “A employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.” In other words: to keep your job, you often can’t say what you like.
Lynne Gobbell knows this firsthand. She drew media attention in 2004 when her employer, a vocal Bush supporter, fired her from her insulation-packing job because he disapproved of the John Kerry bumper sticker on her car. Similarly, Michael Italie lost his job as a machine operator because he appeared on a local radio program in which he discussed his socialist views and his wildly impractical bid for Miami mayor on the Socialist Workers Party ticket. Even more bizarrely, Tim Torkildson, an instructor at an English-language school, lost his job in 2014 when his boss mistakenly concluded that a blog post he wrote to explain homophones (words that sound alike but are spelled differently) would associate the school with “the gay agenda.”
Although these examples are extreme, they reflect the broad power many employers possess to terminate employees for speaking their minds. In each of these situations, the termination occurred in a jurisdiction where the employer’s action was legal.
If this use of economic power to punish speech sounds un-American, remember that the First Amendment limits only the government’s ability to suppress speech. It provides that “Congress shall make no law . . . abridging the freedom of speech.” Courts have extended this prohibition to all federal, state, and local government officials but have consistently emphasized that the First Amendment’s strictures do not apply to private-sector employers. Accordingly, the only people who enjoy First Amendment protection vis-à-vis their employers are people employed by the government.
Historically, unions protected many private-sector workers from speech-related terminations because they negotiated contracts that limited employers’ abilities to terminate workers without a performance-related rationale. However, because union membership has been steadily declining, the vast majority of private-sector workers now are “employment at will,” which means to use force, intimidation, or threats to prevent an individual from supporting or advocating for a federal candidate. So if Lynne Gobbell’s boss enlisted other persons to help him terminate Gobbell, it would appear that he violated the statute. Unfortunately, however, in more than half of the country, including Gobbell’s home state, courts conclude that the statute’s conspiracy requirement cannot be satisfied when the coconspirators are employees of the same corporation. Additionally, even in the jurisdictions where corporate conduct can satisfy the conspiracy requirement, the statute only covers a narrow category of speech related to supporting federal candidates. It does not protect speech supporting state or local candidates and speech advocating an issue or idea rather than a candidate.
State statutes limiting speech-related terminations are similarly incomplete. At the protective end of the spectrum, five states (California, Colorado, Montana, New York, and North Dakota) prohibit employers from punishing employees for legal off-duty activities that do not conflict with the employer’s business-related interests. Nine additional states more narrowly protect employees who engage in political activities and five states similarly protect individuals who sign initiative, referendum, recall, or candidate petitions.
These limited protections for off-duty political speech are not available to approximately half of the U.S. population that works in the remaining 31 states. Accordingly, the majority of American workers have legal protection for their speech only when it relates to a narrow category of topics protected by federal, state, or local law. A brief survey of these laws reveals that they frequently require the employee to thread a needle: they must speak about the right topic, in the right way, and to the right person.
For example, the National Labor Relations Act (NLRA), enacted in 1935, which protects employees’ abilities to unionize, protects certain types of speech that relate to group efforts to improve working conditions. Importantly, the National Labor Relations Board, which enforces the NLRA, has emphasized that employee conduct rules that prohibit employees from posting comments criticizing their employer on social media may violate the NLRA. Nonetheless, the NLRA’s protection has significant limitations. While the NLRA protects work-related complaints that an individual makes on behalf of other employees or in an attempt to initiate group action, it does not protect work-related complaints made solely by and on behalf of the individual employee herself. And because the NLRA focuses solely on group efforts to improve workers’ terms and conditions of employment, it protects political speech only to the extent that the speech relates to unionization and other work-related issues.
Whistle-blower protections have similar limitations. Although numerous federal and state statutes protect workers who report their employers’ wrongdoing, the statutory coverage adds up to an incomplete patchwork that leaves many whistle-blowers unprotected. Importantly, about half of the states’ whistle-blower statutes cover only government employees. Additionally, many statutes require that the employee report the wrongdoing to an appropriate government agency; reports made to the employee’s supervisor or to the media may not qualify for protection. Many statutes require that the alleged wrongdoing be clearly illegal instead of simply unethical. In some states, the wrongdoing must be a felony or an illegal act that poses a significant threat of harm to public health or safety.
Although workers who complain to their employers or appropriate state and federal agencies about potential violations of employment discrimination law typically enjoy broader retaliation protection, they still, like all whistle-blowers, face the difficult task of proving that their employer fired them for reporting wrongdoing instead of one of the innumerable legal reasons for firing an at-will employee. This can be difficult because few employees have completely spotless records and many employers have monitoring technology that they do not have a contract that limits the reasons for which they may be fired. Accordingly, most workers have no protection from speech-related termination unless they can prove that their employer’s motive for firing them violates a federal, state, or local law. The available statutory protections form an incomplete, and often indefinite, patchwork that leaves large amounts of employee speech and political activity unprotected.
At first glance, a federal civil rights statute enacted as part of the Civil Rights Act of 1871 would appear to help some employees, such as Lynne Gobbell, who was fired for her John Kerry bumper sticker. It prohibits two or more people to act pursuant to a conspiracy that enables them to identify employee infractions after the fact.
Even government employees, who have First Amendment protection, face significant difficulty when challenging speech-based terminations. First, thanks to the Supreme Court’s 2006 decision in Garcetti v. Ceballos, the First Amendment does not protect speech that government employees make as part of their job duties. This means that speech revealing government wrongdoing, incompetence, or waste frequently does not receive First Amendment protection because a worker able to detect these problems often has job responsibilities that require him to report them. Accordingly, government employees must look to the incomplete patchwork of whistle-blower statutes to find protection for their work-related speech.
Second, the First Amendment’s protection of government employee speech is limited to speech that addresses a matter of public concern, which means that a court must judge the speech to be a subject worthy of public attention. While letters to the editor about political or social issues typically qualify, personal grievances and many forms of nonpolitical self-expression typically do not qualify.
Finally, even government employee speech that meets these requirements— it involves a matter of public concern and is not part of the employee’s job duties—may fall outside the First Amendment’s protection if the speech has potential to disrupt operational efficiency. In many cases, courts conclude that the government’s interest in the smooth functioning of the workplace outweighs the government employee’s First Amendment speech rights. For example, in Connick v. Meyers (1983), the Supreme Court concluded that the First Amendment did not protect an assistant district attorney’s discussions with her coworkers about pressure she and her coworkers felt to work on political campaigns. The Court reasoned that even though the topic was clearly a matter of public concern, Meyers’s supervisor could legally terminate her because he reasonably believed that her speech would undermine his authority and disrupt office morale. As this example suggests, even though the First Amendment covers government employees, the significant limitations courts have placed on the First Amendment’s application to the workplace means that government employees can experience speech-related terminations comparable to those that occur in the private sector.
In sum, the fragmented body of law that governs speech-related termination leaves all American workers vulnerable, albeit to varying degrees. Although typically invisible, this vulnerability creates a chilling effect that both dampens individual self-expression and inhibits public discourse. This is cause for concern.
First, the increasing numbers of Americans working longer hours and even multiple jobs mean that we spend a large and an ever-increasing percentage of our lives at work. Accordingly, because most people tend to prioritize sleep and recreational activities over engaging in political speech during their limited off-work hours, forfeiting our speech rights at work often means that we forfeit our speech rights altogether. This not only reduces each individual employee’s expressive activities but also reduces the quantity and quality of civic engagement.
Second, the threat of speech-related termination results in lost opportunities for the type of coworker dialogue that has potential to foster understanding across social boundaries and spur positive social change. Unfortunately, due to the increasing polarization and fragmentation of American society, the workplace constitutes the primary remaining forum in which adults with different political, social, and religious backgrounds have sustained opportunities to debate the issues of the day. But, unfortunately, recent studies indicate that even though Americans are working longer hours and are spending more time with their coworkers than in the past, workplace conversations have become more superficial.
Finally, in many jobs, technology and the potential for employers to monitor its use blurs the line between work and personal activities. The possibility that employers will technologically “overhear” off-work employee speech creates a chilling effect for discussing controversial topics that extends into employees’ private lives.
Admittedly, a certain degree of employer control over employee speech is inevitable and appropriate. For example, few people would dispute an employer’s right to prohibit workers from discussing trade secrets and other proprietary information with persons outside the company. Similarly, few people would question an employer’s right to prohibit bullying and harassing speech in order to foster a productive work environment and avoid liability under employment discrimination law. Additionally, many people would agree that individuals who represent the public face of the company, such as a corporate spokesperson or CEO, may justifiably lose their jobs for public comments that they reasonably should have known would damage the company’s reputation.
In most circumstances, however, the average employee’s speech poses little risk of harm to the employer. The harm to the employee created by an employer’s ability to punish speech, by contrast, is significant. Particularly in times of economic insecurity, the threat of speech-related termination creates a powerful economic pressure for self-censorship. In the aggregate, this self-censorship compromises the free exchange of ideas necessary for a functional and inclusive democracy.