Where Free Speech Goes to Die: The Workplace
By Michael Dolgow
Bloomberg Business Week
August 03, 2012

http://www.businessweek.com/articles/2012-08-03/where-free-speech-goes-to-die-the-workplace

In America you can say pretty much whatever you want,
wherever you want to say it. Unless, that is, you're at
work. Simply put, there is no First Amendment right to
"free speech" in the workplace--potentially perilous
for many employees in a polarized political year with a
tight presidential race.

Current news provides plenty of examples of just how
much leeway managers have to limit their workers'
freedom of speech, or to encourage political activity
among employees. On Aug. 2, an Arizona-based medical
supplies manufacturer, Vante, dismissed CFO Adam Smith
for berating a Tucson Chick-fil-A employee for working
at what he considered a homophobic company. Chick-fil-A
has made national headlines recently for its
president's controversial comments about same-sex
marriage.

"I don't know how you live with yourself and work
here," Smith says in a video of the exchange, which was
posted on YouTube (GOOG). "This is a horrible
corporation with horrible values. You deserve better."
Vante quickly fired Smith, and posted its regrets about
the incident in a statement on the home page of its
website.

Bosses and those who work under them are not equal when
it comes to free-speech legal claims. Employers have
the right to take action against any employee who
engages in political speech that company leaders find
offensive. With a few narrow exceptions the
Constitution and the federal laws derived from it only
protect a person's right to expression from government
interference, not from the restrictions a private
employer may impose, lawyers say.

Employers are not similarly restricted in expressing
their political views or encouraging support for a
particular candidate or cause. Not only can employers
remind employees of the upcoming election and encourage
them to vote, but they can base continued employment on
whether a worker agrees to contribute money or time to
the boss's favorite political candidate, so long as
there's no state law prohibiting it. (Eight states and
the District of Columbia have laws protecting employees
from such mandates.)

Consider the case of David Siegel, founder of Orlando
(Fla.)-based Westgate Resorts, the nation's biggest
time-share developer and the man behind what is planned
to be the largest house in America. In February, Siegel
told Bloomberg Businessweek that his efforts were
largely responsible for the 2000 election of President
George W. Bush. "I'm not bragging, I'm just stating the
fact: I personally got George W. Bush elected," he
said. "I had my managers do a survey on every employee.
If they liked Bush, we made them register to vote. But
not if they liked Gore." Siegel also said his company's
call center made 80,000 calls on behalf of Bush's
campaign.

While federal statutes such as the 1964 Civil Rights
Act, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Genetic
Information Nondiscrimination Act, and the National
Labor Relations Act limit companies' rights to fire or
hire workers and prevent them from joining unions,
these restrictions are based only on race, religion,
ethnicity, sex, age, and a few other protected
categories. Political opinion isn't protected by any of
these statutes.

"The First Amendment applies only to employees of the
government in certain situations, and all citizens when
they're confronted by the government," says Mark Trapp,
an employment lawyer with Epstein Baker Green in
Chicago. "In other words, freedom to speak your mind
doesn't really exist in work spaces."

It's a limitation that retired Air Force Colonel Morris
Davis knows well. The former prosecutor of the
Guantanamo Bay military commissions, who was appointed
by President George W. Bush, resigned over what he
perceived as systematic mistreatment and abuse of
prisoners by U.S. soldiers at the detention camp. After
taking a job with the Library of Congress, he was fired
in late 2009 for refusing to recant the contents of
pieces published in the Wall Street Journal and the
Washington Post criticizing the Obama administration's
failure to close the prison.

"I was shocked to see the limits of the First
Amendment," Morris says. "We like to think that our
rights are carved in granite, but instead it turns out
they're carved in sand." Morris now teaches law at
Howard University; the American Civil Liberties Union
has sued the Library of Congress seeking Morris's
reinstatement.

However, there are valid reasons an employer would
restrict political speech, beyond assuring a productive
work site or suppressing opinions contrary to
management. Chief among them: a fear of lawsuits
alleging that an employer permitted a hostile work
environment, and the risk of having to pay damages.

John Whitehead, president of the Rutherford Institute,
a conservative legal organization, says employers are
too quick to fire people over any statement with which
managers disagree. "Americans now are not generally
advocates of free speech, which really is not good,"
Whitehead says. "Someone says anything that an employer
or government official doesn't like, and they're gone."

The bottom line is pretty simple: Be satisfied with
talk at work that doesn't offend colleagues or anger
the boss. "The Constitution operates as a restriction
on government, not private employers," Trapp says. "An
employee would do well to keep this in mind before
shooting off her mouth at the workplace."

Dolgow is an intern for Bloomberg Businessweek.

____________________________________________

PortsideLabor aims to provide material of interest to
people on the left that will help them to interpret the
world and to change it.

Submit via email: [log in to unmask]

Submit via the Web: http://portside.org/submittous3

Frequently asked questions: http://portside.org/faq

Sub/Unsub: http://portside.org/subscribe-and-unsubscribe

PS Labor Archives: http://portside.org/archive

Contribute to Portside: https://portside.org/donate