The Volokh Conspiracy
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Crafting Laws That Limit Private-Employer-Imposed Speech Restrictions
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?
[* * *]
[A.] Protecting at Least Political Speech Generally, Not Just Campaign-Related Speech
Some of the existing statutes are limited to particular campaign-related activity, such as advocating for a candidate or ballot measure, or signing a ballot measure petition, or contributing to a campaign. Some other statutes include political speech more broadly.[1]
It seems to me that the broader approach is correct, even if one views the laws as primarily promoting self-government. Why protect advocacy of (say) a pro-abortion-rights ballot measure, but not speech supporting abortion rights more broadly? Why protect opposition to a candidate because of his stance on immigration, but not opposition to a particular view on immigration more generally?
Elections, after all, are influenced not just by direct advocacy of candidates and measures, but also by issue advocacy more broadly. Indeed, they are often influenced by issue advocacy that had happened years before the election campaign formally began. Protecting such issue advocacy—whether involving speech, press, or assembly—is just as important as protecting advocacy that is more directly focused on the election.
Likewise, while contributing to a campaign is important to free speech, speaking about a campaign and its issues is of course at least as important. And while signing a petition supporting an initiative, referendum, recall, or candidate is important to self-government, arguing in favor of such a measure or candidate—or the issues related to such a measure or candidate—is as well.
[B.] Protecting Speech More Generally, Not Just Political Speech
Some of the statutes are limited to "political activity," which appears to refer to advocacy of some "candidate or cause," including broad social movements (such as the gay rights movement[2]). Others include speech more broadly, or lawful off-duty activity more broadly.
Again, it seems to me that the broader definition is better, even if one views the laws as primarily promoting self-government. Speech about religion, morality, and science, for instance, can obviously bear on important political issues. Even speech about entertainers or athletes can do the same. Indeed, to the extent that speech might be controversial and offensive to some, and thus prompt employers to want to fire the speaker, that is likely precisely because it expresses some moral or ideological view.
A law might be crafted to protect only speech on matters of "public concern," as is the rule under the First Amendment for government employee speech.[3] But as I've argued elsewhere, that line has proved to be vague, malleable, and inconsistent.[4] Perhaps some such line has to be present if the law applies to on-the-job speech (see Part III.E below), since employers have to be able to control garden-variety rudeness and other speech-based conflicts at work. But any "public concern" limitation would probably be best avoided for off-the-job speech.
[C.] Criminal Liability, Civil Liability, or Both?
Some of the existing statutes expressly provide for civil liability, some for criminal liability, and some for both.[5] I'm inclined to say that criminal liability is going too far here, especially given the lack of criminal liability for other forms of employment discrimination claims.
[D.] Coverage for Existing Employees or Also for Applicants?
Some of the existing statutes expressly cover all employer decisions. Others only cover discharge or discipline of current employees rather than refusal to hire applicants.[6]
It seems to me that applying them to refusal to hire, again by analogy to most employment discrimination claims, is likely right. In practice, bans on hiring discrimination are much less likely to be enforced than bans on discrimination in dismissal or demotion.[7] But they still likely have some benefit, especially by signaling to large, bureaucratic employers that these are rules that the institution needs to follow. And precisely because they are less likely to be enforced, they also impose relatively little marginal deterrent to non-speech-based employer hiring decisions.
[E.] Off-the-Job Speech or All Speech?
Some statutes cover only off-the-job speech, while others have no such limitation.[8]
On-the-job speech can be a valuable part of public discourse. Most of us spend a third of our waking hours at work; for many, most of the people we see face-to-face each week are our colleagues. A conversation with a colleague in the lunchroom is more likely to persuade or inform us about some topic in the news than is the oration of a stranger on the street corner. And while social media has given people many more opportunities to talk to others—including to coworkers who are social media contacts—in-person conversations are often more influential for many people than text exchanges.
At the same time, on-the-job speech is also much more likely to disrupt the employer's workplace, and cause immediate tension with coworkers and customers. What's more, disputes about on-the-job personal insults and slights are commonplace, and may often call for some disciplinary measures, including dismissal—likely much more often, I think, than disputes about off-the-job speech. Restricting employer discretion with regard to employees' on-the-job speech is thus likely to be much more burdensome on employers. At the very least, such restrictions would have to be limited to "public concern" speech or some such, however imperfect such tests might be, and would likely need to have some provision for employers to deal with genuinely disruptive speech (more on that at Part III.G below).
[F.] No Employee Right to Choose What One Says on the Employer's Behalf
But even if on-the-job speech to coworkers in casual conversations is protected, that shouldn't extend to speech said as part of one's job. News sites must have the right to tell reporters and editors which articles they should post.[9] Private primary and secondary schools must be able to tell their teachers what they must say, or must not say, in class.[10] Companies must be able to tell their salespeople that they have to give a particular pitch in a particular way, or that they can generally frame things as they like to prospective customers but can't say certain things or must say other things; likewise for technical support and all sorts of other jobs where the employee speaks on the employer's behalf.
The same should also extend to passive communications, for instance via message- or symbol-bearing pins, T-shirts, caps, ties, and the like, even when they are in context obviously the employee's own speech.[11] When an employer places employees in front of clients, the employee shouldn't be able to hijack that opportunity to convey its own message rather than the employer's. (The matter is different, I think, for ordinary coworker speech to each other: Coworkers normally speak to each other as part of workplace social interactions, and when that happens, it's reasonable to protect such speech against employer retaliation.)
Tomorrow and Friday: Exceptions for speech and political activity that sufficiently undermine employer interests.
[1] See Volokh, supra note *, at 309–34.
[2] See Volokh, supra note *, at 313.
[3] Connick v. Myers, 461 U.S. 138, 143 (1983); see also Post, supra note 1 (endorsing generally limiting First Amendment protection to speech that's seen as part of "public discourse"); Weinstein, supra note 1 (likewise).
[4] See Eugene Volokh, The Trouble with "Public Discourse" as a Limitation on Free Speech Rights, 97 Va. L. Rev. 567 (2011); Eugene Volokh, Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases), 45 Harv. J.L. & Pub. Pol'y 147, 196–208 (2022). See also, e.g., Hernandez v. City of Phoenix, 432 F. Supp. 3d 1049, 1060 (D. Ariz. 2020) (concluding that "post which said the most common name for a convicted gang rapist in England is Mohammad," "meme post which recounts the story of a Muslim man being kicked out of a taxi after asking the taxi driver to turn off the music in the car as a religious accommodation," "post which listed controversial opinions by Muslim scholars and theologians," and "post[] of an article entitled 'Military Pensions Cut, Muslim Mortgages Paid by US!'" were not on matters of public concern); Heim v. Daniel, No. 1:18-cv-836, 2022 WL 1472878 (N.D.N.Y. May 10, 2022) (concluding that university economics instructor's "books and other writings" aren't on a matter of public concern because they "are written to a specific, narrow audience: policy wonks 'engaged in academic discussion of economics' and 'government officials engaged in economic forecasting'").
[5] Courts generally treat these sorts of criminal statutes as also generating a private right of action, either as a matter of statutory interpretation or as an application of the "wrongful discharge in violation of public policy" tort. See Volokh, supra note *, at 302.
[6] See Volokh, supra note *, at 302–03.
[7] See, e.g., Scott A. Moss, Women Choosing Diverse Workplaces: A Rational Preference with Disturbing Implications for Both Occupational Segregation and Economic Analysis of Law, 27 Harv. Women's L.J. 1, 72 (2004).
[8] See Volokh, supra note *, at 304.
[9] Gombossy v. Hartford Courant Co., 2010 WL 3025512, *4 (Conn. Super. Ct. June 29, 2010) (concluding that the First Amendment allowed a newspaper to fire someone based on his past articles for the newspaper); Epworth v. J. Reg. Co., 12 Conn. L. Rptr. 585 (1994) (likewise).
[10] Private universities should have the First Amendment right to do so as well, I think, though this would often be seen as violating professional academic freedom norms.
[11] Often this will indeed be clear from context. No one would think, for instance, that a necktie worn by a teacher or a lawyer is the employer's speech.
