A Chill Around the Water Cooler: First Amendment in the Workplace

by

Jeannette Cox is a professor of law at the University of Dayton School of Law. She specializes in disability law and employment discrimination law.


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.



Advertisement


Subscribe Now!


One Year Subscription

A one year subscription to Insights on Law & Society costs $34 and includes three issues of the print magazine, as well as access to additional online resources.


Past Issues

Digital versions of past issues (prior to 2012) are also sold separately at $1.50 for those interested only in specific topics covered by issues of the magazine. Discounts are applied to bulk print orders.


For questions about purschasing or subscribing to Insights, call Customer Service at (800) 285-2221.


Insights on Law and Society is edited by Tiffany Middleton. She can be reached at tiffany.middleton@americanbar.org.