Reasons Not to Limit Private-Employer-Imposed Speech Restrictions: The Employer's Own Free Speech Rights?

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

Tuesday and Wednesday, I blogged the Introduction and the beginning of the argument in favor of such statutes; today, I continue discussing some arguments against such statutes (and you can see the whole article right now, if you'd like, by looking at the PDF).

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Freedom of Symbolic Expression

Nor can employers argue that firing employees based on their speech, or refusing to hire them, is symbolic expression protected by the First Amendment. In Rumsfeld v. FAIR, the Court rejected law schools' argument that excluding military recruiters from their on-campus recruiting programs was constitutionally protected symbolic expression. Such exclusion "is not inherently expressive," since "[a]n observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else." And when "[t]he expressive component of a law school's actions is not created by the conduct itself but by the speech that accompanies it," those actions are "not so inherently expressive that [they] warrant[] protection under O'Brien." "[I]f an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes," the court need not "apply O'Brien to determine whether the Tax Code violates the First Amendment."[1]

The same would apply here. By itself, the firing of an employee (or the refusal to hire the employee) doesn't convey a message. An observer who learns of it "has no way of knowing whether the [employer] is expressing its disapproval of [the employee's speech, religion, race, sexual orientation, or the like]" or has instead found that this employee or applicant hasn't been doing a good job. "The expressive component of [the employer's] actions is not created by the conduct itself but by the speech that accompanies it." Indeed, that's why job discrimination based on other criteria, such as religion or race, isn't treated as constitutionally protected symbolic expression.

And even if firing someone is viewed as "inherently expressive," that would only subject the ban on discrimination based on speech to O'Brien scrutiny. That is generally a deferential test, which requires "narrow tailoring" (and not in the strong sense that term carries under strict scrutiny) to a "substantial government interest."[2] The interests in protecting political expression are likely to qualify as important enough, for the reasons given in Part I. And the law is likely to be narrowly tailored for the same reason that the ban on public accommodations discrimination in Roberts is narrowly tailored: Because employment discrimination "produce[s] special harms distinct from [its] communicative impact," an antidiscrimination law "'responds precisely to the substantive problem which legitimately concerns' the State and abridges no more" symbolic expression "than is necessary to accomplish that purpose."[3]

Freedom of Speech

To be sure, sometimes having to hire an employee who visibly holds particular views might undermine an employer's ability to express its chosen message, just as having to allow a gay rights activist to be an assistant scoutmaster was seen as undermining the Boy Scouts' ability to express its chosen message.[4]

Thus, for instance, the Washington Supreme Court held (albeit 5-4) that newspapers have the First Amendment right to bar their reporters from engaging in any political activity, notwithstanding the Washington statute that generally protects private employees from such restrictions.[5] Because "the government absolutely may not regulate the content of a newspaper," the newspaper was entitled to "implement[] a code of ethics which it designed in good faith to foster the newspaper's integrity and credibility," including by barring political activity by its reporters.[6] Likewise, a performing arts organization would likely be allowed to refuse to hire a narrator or actor whose past political activity is likely to distract the audience from the organization's artistic (or ideological) message.[7]

And this fits well with Dale, which reasoned that "the forced inclusion of Dale would significantly affect [the Boy Scouts'] expression" and was thus unconstitutional,[8] because

1. Dale sought to be an assistant scoutmaster, whose job it is to speak on behalf of the Boy Scouts—to "inculcate [youth members] with the Boy Scouts' values," "both expressly and by example";[9] and
2. "the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts' ability to advocate public or private viewpoints," because "Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist," and having Dale be an assistant scoutmaster "would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."[10]

Likewise, when an advocacy group hires people to promote particular ideas, requiring it to hire as its speakers people who have publicly opposed those ideas—or said things inconsistent with those ideas—would "significantly affect the [group's] ability to advocate … [its] viewpoints." Requiring a newspaper to hire as its speakers people who are prominently associated with a particular political position would significantly affect its ability to credibly communicate information in a way that appears balanced and nonpolitical. And requiring an artistic organization to hire as its speakers people who are associated with such a position will undermine its ability to send the particular aesthetic or artistic message that it wants to send: The messenger is part of the message, and hearing even neutral artistic material from someone who has become well-known for political views may make that material seem ideologically laden, or at least may significantly distract from the artistic message.[11]

The matter isn't open and shut: In Associated Press v. NLRB (1937), the Court rejected (5-4) the AP's argument that it had a First Amendment right to bar its editors from "union activity or agitation for collective bargaining with employees."[12] Likewise, the California Court of Appeal has rejected the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies."[13]

Nonetheless, it seems to me that there's a strong argument—as a First Amendment matter but even more so as a policy matter—in favor of some such limits on the political speech protection laws, when it comes to employees who speak on the employer's behalf to the public or to clients. Employers that speak must necessarily speak through their employees; and when an employee or prospective employee says things, even off the job, that would undermine the employer's message, the employer must be able to distance itself from the employee.

That is particularly true for employees such as broadcasting and print reporters, opinion columnists, actors, and the like. It should also be true for employers' commercial spokespeople, who are supposed to be the public face of the employer. Though commercial speech is less protected than other speech, it is still protected to a considerable extent; and the ability to convey a commercial message through a spokesperson may be sharply undermined by public consciousness of the spokesperson's outside speech. (One interesting question would be whether it applies to ordinary salespeople.)

At the same time, the great majority of all private employees don't speak on the employer's behalf: they are engineers, accountants, secretaries, janitors, and more. The statutes can apply to those employees without violating the employer's free speech rights.

[1] 547 U.S. 47, 66 (2006). This question had been unsettled earlier, see, e.g., Clark v. Community for Creative Non-Violence, 466 U.S. 288, 293 (1984) ("[w]e assume for present purposes, but do not decide," whether "overnight sleeping in connection with [a] demonstration is expressive conduct protected to some extent by the First Amendment"), but FAIR appears to have settled it.

[2] United States v. O'Brien, 391 U.S. 367, 377 (1968).

[3] Roberts v. U.S. Jaycees, 468 U.S. 609, 628–29 (1983).

[4] Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).

[5] Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1127 (Wash. 1997)

[6] Id. at 1131, 1133.

[7] Redgrave v. Boston Symphony Orchestra, Inc., 855 F.2d 888, 894, 904–06 (1st Cir. 1988) (suggesting that symphony might well have a First Amendment right to refuse to let plaintiff narrate a performance, even if the reason for the refusal stemmed from plaintiff's past speech and would therefore presumptively violate the Massachusetts Civil Rights Act); see also Cotto v. United Techs. Corp., 738 A.2d 623, 627 n.5 (Conn. 1999) (acknowledging that in some circumstances, the Connecticut statute "may conflict with the employer's own free expression rights").

[8] 530 U.S. at 656-57.

[9] Id. at 649–50.

[10] Id. at 653.

[11] Query whether this should apply even when the spokespeople, actors, or other such speakers aren't public about their views, but have private views that the organization worries might become public and might thus undermine the organization's message.

Of course, the Religion Clauses would give a religious institution the right to select clergy, teachers of religion, and other employees who speak on the institution's behalf based on the employees' politics, just as the employer is free to select those employees based on race, religion, sex, sexual orientation, and so on. See, e.g. Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

[12] Associated Press v. NLRB, 301 U.S. 103, 131–32 (1937).

[13] Ali v. L.A. Focus Publ'n, 112 Cal. App. 4th 1477, 1488 (2003).