Crafting Exceptions to Laws That Limit Private-Employer-Imposed Speech Restrictions (2) + Conclusion

As I mentioned last week, ten years ago I wrote a descriptive and analytical law review article called Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I'm returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and last week and this I'd like to serialize it here.

Last Tuesday and Wednesday, I blogged the Introduction and the beginning of the argument in favor of such statutes, followed by an explanation of why such statutes usually don't violate employers' constitutional rights. This week, I've discussed some other arguments against such statutes (and you can see the whole article right now, if you'd like, by looking at the PDF). Say, though, that we do conclude that there should be some protection for private employee speech. Just what sort of protection should this be, and in particular what exceptions, if any, should there be for speech that unduly interferes with the employer's interests?

[* * *]

One possible answer, which I discussed yesterday, is that there should be such exceptions, written in general and necessarily vague terms, and potentially applicable to a wide range of ways in which speech can interfere with the employer's business.

But some statutes have, apparently without visibly bad results, eschewed such vague exceptions, and focused on more specific categories of speech. New Hampshire law has renounced the state's and local governments' powers to fire employees based on the Pickering balance, though in a statute addressed only to public employers; instead, it created a special exception just for "confidential and privileged records":

98-E:1 Freedom of Expression…. [A] public employee … shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies. It is the intention of this chapter to balance the rights of expression of the employee with the need of the employer to protect legitimate confidential records, communications, and proceedings….

98-E:2 Interference Prohibited. No person shall interfere in any way with the right of freedom of speech, full criticism, or disclosure by any public employee.

98-E:3 Confidential Records. Nothing in this chapter shall suspend or affect any law relating to confidential and privileged records or communications….[1]

This has apparently not caused major problems in New Hampshire, or at least sufficient problems to lead the Legislature to repeal the law or add some sort of balancing.[2]

Likewise, the Colorado  statute, which covers not just speech but any lawful off-premises off-duty activity, has a special exception for conflicts of interest, which would presumably be read as dealing with financial conflicts (such as moonlighting for a competitor) and not just activities that create bad public relations for the employer.[3] The New York recreational activities statute, which may cover some off-duty speech, and the New York political activities statute, which covers political-campaign-related speech, include similar exceptions.[4] The New York statute also has a specific exception for professional journalists.[5]

One can also imagine other such exceptions: For instance, a statute may provide strong protection for off-the-job speech, but have an exception for speech communicated specifically to a coworker who has asked not to be contacted with such speech,[6] or even for public speech about a coworker who has asked not to be talked about that way. This sort of exception may particularly avoid tension that would reach back into the workplace, without materially interfering with people's ability to communicate with willing listeners, about any topic other than a coworker's perceived faults.

This having been said, these exceptions couldn't be viewpoint-based, even if they could in some measure be content-based.[7] When the government is providing special benefits for private speech—such as trademark registration[8] or access to government property[9]—it must do so in a viewpoint-neutral way.[10] Likewise, I think, when the government is providing special statutory protections for private speakers, it likewise may not discriminate based on viewpoint. The law can't protect all speech except, say, racist speech or Socialist speech or unpatriotic speech.

Conclusion

As I hope I've made clear, private employee speech restrictions might be a cure that's worse than the disease. They might unduly interfere with employers' associational rights (though not generally in an unconstitutional way). They might unfairly require employers to keep paying employees who are more trouble than they are worth. They might make it harder for employers to dismiss employees even for eminently legitimate reasons unrelated to the employee speech. And of course, they might increase the amount of offensive and harmful speech by making it less expensive for the speakers (though the same can be said of free speech rights generally).

At the same time, private employer speech restrictions genuinely do threaten to undermine democratic self-government, the marketplace of ideas, self-expression, and the development of autonomous citizens, much like many governmental speech restrictions do. To take just one example, consider abortion, which the Supreme Court has now returned to the political process. It's much harder to have meaningful democratic debate about this subject if people know that they can be fired for signing an initiative or referendum petition, or contributing their money to a ballot measure campaign, or publicly endorsing a candidate—or for that matter just for expressing their views on the moral or practical impact of one or another position. And to the extent that religious association or expression on this subject is protected by Title VII and state religious discrimination bans, nonreligious expression ought to be as well.

This threat to public discussion and to self-expression also seems likely to be increasing, as people find it easier than ever before to demand, in an organized way, the firing of other people whose speech they condemn. And the existence of such laws may actually take some of this public pressure off employers, by giving employers an answer to such demands: "We don't like the employee's speech, either, but we can't fire him, because the law has tied our hands." I'm not sure what the right answer is to these questions; but I hope what I've said above can help us think through them.

[1] N.H. Rev. Stats. Ann. §§ 98-E:1 to -E:4 (West, Westlaw through ch. 143 2022 Reg. Sess.). The statute allows prevailing plaintiffs to get injunctions, damages, and reasonable attorney fees.

[2] Cf. Appeal of Booker, 139 N.H. 337, 341 (1995) ("We conclude that this section serves to free a State employee's speech rights from the limits imposed by the Pickering . . . balancing test.").

[3] Colo. Rev. Stat. Ann. § 24-34-402.5(1) (West, Westlaw through July 15, 2022 of the 2d Reg. Sess., 73d Gen. Assemb.).

[4] N.Y. Lab. Law. § 201-d(3)(a) (McKinney, Westlaw through L.2022).

[5] N.Y. Lab. Law. § 201-d(2)(a) (McKinney, Westlaw through L.2022).

[6] See, e.g., Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking," 107 Nw. U. L. Rev. 731 (2013) (discussing why some restrictions on such individually targeted speech may be less burdensome than restrictions on speech to the public at large, or to willing listeners).

[7] To briefly summarize,

[8] Matal v. Tam, 137 S. Ct. 1744 (2017).

[9] Rosenberger v. Rector, 515 U.S. 819 (1995).

[10] I discuss this limitation on these sorts of protections against private speech restrictions at Eugene Volokh, Treating Social Media Platforms Like Common Carriers?, 1 J. Free Speech L. 377, 445–48 (2021).