Speaking Freely

Are you breaking First Amendment law when you fire that loudmouthed employee?

Suppose you have an employee who denounces your business decisions at every opportunity (and at the worst times), or one whose vocal opposition to gun control or abortion or government policy has become a constant irritant in the office. The U.S. Constitution guarantees citizens a right to free speech, so you can't do anything about it. Or can you?

In many cases, you can. Workers assume they have a constitutional right to say almost anything they want, but the law protects only certain types of speech. And while the law in some states protects employees from retaliation for exercising their First Amendment rights, courts often defer to employers who discipline workers over letting them speak their minds, if they have a legitimate business interest in doing so.

"The term 'free speech' can be overused," says Brian Clemow, a partner in the law firm Shipman & Goodwin LLP in Hartford, Connecticut. "The courts have defined fairly narrowly the types of expression that are protected." Clemow, chair of the firm's labor and employment practice, explains that, generally speaking, the law protects only political speech and matters of public interest or concern. "Statements concerning purely private matters, such as an employee's individual grievances about his job or his boss, don't qualify for protection." So if you decide to fire an employee because his or her griping about personal issues is becoming disruptive in the workplace, he or she will have adifficult time convincing a court that you violated free speech rights.

Even if the employee in question is addressing matters of public concern, you can usually put a lid on it if you have a legitimate business reason. For example, if the employee plasters graphic anti-abortion posters all over his or her workstation and it causes an uproar among co-workers, you can insist that the offending posters come down. If the political buttons on the employee's uniform imply to the public that your firm supports that candidate, you can ask that they not be displayed near your company insignia. And if an employee's public accusations demoralize your work force and damage your company's image, you can probably take disciplinary action.

Steven C. Bahls, dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

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This article was originally published in the August 2000 print edition of Entrepreneur with the headline: Speaking Freely.

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