Should the Law Limit Private-Employer-Imposed Speech Restrictions?

The Constitution limits the government's—including government employers'—power to discriminate based on race, sex, or religion. A federal statute and statutes in nearly all states applies these norms to private employers as well. Many libertarians disapprove of any such restrictions on private employers; but for nearly 60 years, American law has imposed such restrictions.

The Constitution also limits the government's—including government employers'—power to restrict people's speech and political activity. And statutes in many states apply this norm, to some extent, to private employers as well. Indeed, a few of them have done this for 150 years (and even longer as to employers' discrimination against employees based on how the employees voted).

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 this week and next I'd like to serialize it here.

Let me begin with the Introduction and the beginning of the argument in favor of such statutes, though you can read the entire article in PDF if you'd like; future posts will also of course cover the arguments against such statutes.

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About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation.[1] Of course, that means about half don't. Which jurisdictions are correct? And, if private employers should generally be barred from firing, disciplining, or perhaps even declining to hire workers based on their speech, which sorts of speech should be protected?

Existing private employee speech protection statutes
(the darker the shading, the more protection)

I. Arguments for Protecting Private Speech

A. Democratic Self-Government

To begin with, the threat of losing one's job is a powerful deterrent to most speakers. If the ability to speak freely, and without distortion by the threat of governmental punishment—or even the threat of loss of government benefits—is a necessary precondition of democratic self-government,[2] then legislatures ought to be concerned about the democratic process being distorted by private employers as well.

This is likely why nearly all states forbid discrimination based on how a person has voted:[3] Private economic power ought not be used to interfere, through threat of coercion of employees, with the political process. But American law has long recognized that for voting to be meaningful, the public also needs to freely discuss candidates and issues before voting on them,[4] and to speak out in ways that influence representatives between elections. This suggests that private employer sanctions against employee free speech interfere with democratic self-government almost as much as sanctions based on voting.

And this deterrent effect of restrictions imposed by private employers is likely far greater than with many other private restrictions. If a shopping mall expels leafleters, the leafleters likely could easily find other places, or switch to other media (such as the Internet). If a newspaper refuses to publish some articles (as it has the First Amendment right to do[5]), the speakers might find it harder to reach the same audience, but they won't be frightened into not expressing that view at all. The threat of the loss of one's livelihood is a far more powerful deterrent than mere ejection from a mall or rejection by a publisher.[6]

To be sure, if you're being threatened with jail for your speech, all you can do to avoid jail is shut up. If you're being threatened with being fired, you can find a new job. But new jobs are often not easy to come by. That's particularly true in times of economic difficulty and unemployment (when people might be especially interested in critiquing the existing order). It may also be true when your work skills are useful to only a limited set of employers, especially in your geographical area. Even if you can get a new job, that may mean sacrificing part of your retirement benefits and other benefits related to seniority. And of course finding a new job takes time, time during which you might be unable to keep up on your house payments, your rent, your car payments, and the like. Far safer just to remain quiet.

Moreover, in times of political tension, certain kinds of speech may lead to pressure on many employers (or at least many in an employee's professional field) to forbid the speech, especially by employees who enjoy some public prominence: Consider Communist speech and even some non-Communist left-wing speech in the 1950s, or allegedly racist or sexist or antigay speech today. And the growth of social media has made public pressure campaigns especially easy. An employee who is contemplating making a controversial political statement might thus worry not just about being fired by his current employer, but also about not being hired by future prospective employers. In the words of the Restatement of Employment Law, which urges private employee speech protections as a common-law matter, "There is a public interest in employees' personal autonomy because it is critical to engagement in civic life. Employees must be free to express their own ideas and concerns in order for the public sphere to flourish."[7]

Now maybe despite that, private employees should have no right to continue drawing a paycheck after they have said something that damages their employer's business (whether because it criticizes the employer, creates tension with coworkers, alienates customers, or otherwise draws public hostility to the employer). I'll discuss that a bit more below. But for now, my point is simply that, from society's perspective, if we value free speech as a tool for democratic self-government, we should recognize that the threat of private employer retaliation does interfere with such self-government.

[1] This article is a normative follow-up to the more descriptive and taxonomic Eugene Volokh, Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. L. & Pol. 295 (2012). To the list of statutes in that article should be added Utah Code § 34A-5-112  (Westlaw current through 2022 Spec. Sess.) (protecting a broad range of speech); Ann Arbor (Mich.). Code of Ordinances §§ 9:151, :154 (2022) (likewise); Ft. Lauderdale (Fla.) Code of Ordinances §§ 29-1, -12(1)(c) (2022) (protecting "political affiliation"); Lansing (Mich.) Code of Ordinances §§ 297.02, .03 (2022) (protecting "political affiliation or belief," without detailed definition); Wayne County (Mich.) Ordinance No. 2020-586 (Oct. 1, 2020) ("political affiliation"); Harford County (Md.) Code of Ordinances §§ 95-3, -5 (2022), https://ecode360.com/HA0904 ("political opinion," defined  as "The opinion of persons relating to government or the conduct of government or related to political parties authorized to participate in primary elections in the state"); Prince George's County (Md.) Code of Ordinances §§ 2-186(a)(6), (23), -222 (2022) (likewise); Howard County (Md.) Code of Ordinances § 12.208 (2022), https://library.municode.com/md/howard_county/codes/code_of_ordinances ("political opinion"); Shreveport (La.) Code of Ordinances §§ 39-1, -2 (2022), https://library.municode.com/la/shreveport/codes/code_of_ordinances ("political … affiliations"); Miami Beach (Fla.) Code of Ordinances § 62-31, -86 (2022)  ("political affiliation," defined to cover support or opposition of organizations that support or oppose candidates or that lobby legislators).

[2] See Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477 (2011); James Weinstein, Participatory Democracy as the Central Value of American Free Speech Doctrine, 97 Va. L. Rev. 491 (2011). My argument here applies whether one thinks democratic self-government is important because it is a means for society to democratically deliberate, or as a means for each citizen to be able to participate freely and equally in the democratic process.

[3] See Volokh, supra note *, at 336. These laws were first enacted in a time when voting was public, see Burson v. Freeman, 504 U.S. 191, 202–04 (1992) (plurality opin.) (reporting that the secret ballot was mostly adopted in the U.S. in 1888–96); Volokh, supra note *, at 299–300 (discussing early bans on employment discrimination in voting, in 1839–81), but they continue to be relevant even with the secret ballot: Sometimes employees will mention how they voted, or might tell the truth when asked how they voted.

[4] See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 269–70 (1964).

[5] Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).

[6] The same argument would apply to Vince Blasi's "pathological perspective" theory of the First Amendment: If we want free speech law that protects against periods in which "certain dynamics"—whether national or local—"radically increase the likelihood that people who hold unorthodox views will be punished for what they say or believe," Vincent A. Blasi, The Pathological Perspective and the First Amendment, 85 Colum. L. Rev. 449, 450 (1985), we would likely want to protect against the prospect that such dynamics would promote private employer repression of speech and not just government repression.

[7] Restatement of Employment Law § 7.08 Rep. Notes; id. § 7.08(a)(2) (concluding that employers should be liable for firing an employee for "adhering to political, moral, ethical, religious, or other personal beliefs or expressing such beliefs outside of the locations, hours, and responsibilities of employment in a manner that does not refer to or otherwise involve the employer or its business," unless the employer "can prove that it had a reasonable and good-faith belief that the employee's exercise of an autonomy interest interfered with the employer's legitimate business interests, including its orderly operations and reputation in the marketplace").