The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Who Can Use Twitter's Offer of Legal Fees "If You Were Unfairly Treated by Your Employer Due to [Tweets]"?
More people than one might imagine, chiefly because many states, counties, and cities have laws that ban private employers from discriminating against their employees based on certain kinds of speech.
If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill.
No limit.
Please let us know.
— Elon Musk (@elonmusk) August 6, 2023
"Unfairly treated," I take it, means in context treated in ways that the law recognizes as unfair and therefore civilly actionable. Who might benefit from that? (I focus here on American law, since that's the only sort of law I know.)
[1.] Many people are unaware of this, but many states, counties, and cities ban even private employers from firing or otherwise disciplining their employees based on the employees' speech or political activity. What's covered varies widely: Some jurisdictions protect a very broad range of speech; others protect "political activity" defined broadly enough to protect a wide range of speech related to political matters; others protect only election-related speech (whether about candidates or ballot measures).
I lay out many such statutes in Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation (2012) (note that Utah has since enacted such a statute), and discuss the policy arguments for and against such statutes in Should the Law Limit Private-Employer-Imposed Speech Restrictions? (2022). It's also possible that a federal statute would protect people who Tweeted for or against political candidates, though that's not clear (see pp. 320-24 of my 2012 article).
Some readers may point out correctly, that the First Amendment only protects against government action. But that doesn't stop legislatures from providing similar protection against private action. Just as Title VII's ban on religious discrimination by private employers in essence applies Free Exercise Clause and Equal Protection Clause principles to many private employers' actions, so these laws apply some subset of Free Speech Clause principles to private employers' actions.
[2.] Private employers may also be bound by express or implied contracts they enter into with employees: tenure contracts, union contracts, and other contracts promising that employees won't be discharged except for good cause (with good cause being defined by the contract). It sounds like Musk's offer extends to lawsuits under such contracts, if the allegation is that an employee was fired or otherwise disciplined in violation of the contract for posting or liking a Tweet.
[3.] Government employers are bound by the First Amendment, though First Amendment protection against firing by a government employer is somewhat weaker than First Amendment protection against being jailed or fined; for more details on that, see this post.
[4.] In certain situations, other private employees might be able to sue over Tweet-related firing or discipline as well, for instance if there's evidence that they were also fired based in part on their race, sex, religion, sexual orientation, and so on—for example, if the claim is that the employer fires members of one group for their controversial Tweets, but doesn't fire members of other groups for comparably controversial Tweets. There could also be other theories that are available in narrow ranges of cases (e.g., as to Tweets related to unionization, or to Tweets that form part of even nonunionized employees' concerted activity aimed at improving pay or working conditions).
[5.] And of course to the extent Musk publicly makes good on his promise, employers covered by items 1 to 4 above might be deterred from firing or disciplining employees based on their Tweets in the first place.
It's hard to know for sure, of course, how this will ultimately play out. There are also interesting questions about when such a gratuitous promise is enforceable (especially as to past Tweets, where the poster can't claim reliance on the promise). And of course if Musk finds the offer too expensive or burdensome, he can revoke it, at least for posts put up after the revocation. But I just wanted to lay out some of the ways this can be applied.
