Speaking Freely

Private Businesses

Private business owners have a surprising degree of authority over what is said or not said in the workplace. (Note that "speech" can include spoken words, written words and such symbols as flags, buttons or arm bands.) Consider a case decided by the Supreme Court of Connecticut in October of 1999. At the height of the patriotic fervor inspired by the Gulf War, an aircraft manufacturer and de-fense contractor in Connecticut distributed American flags to his employees and told them to display the flags in their workstations. One worker refused to display the flag, and he questioned aloud the propriety of coercing or exerting pressure on employees to display it. Co-workers harassed and threatened the dissenter, evidently with the encouragement and support of their employer. Soon thereafter the employee was terminated.

The worker sued under a state statute, similar to those in force in several other states, that holds employers liable for damages if they discipline or discharge an employee for exercising his rights under the First Amendment. In a lengthy opinion, the Supreme Court of Connecticut ruled that the statute applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen. "A statute that protects constitutional rights in the workplace should not be construed so as to transform every dispute about working conditions into a constitutional question," the judges wrote.

In this case, the fact that the worker protested an order to display the flag doesn't mean that he had a constitutional claim. The court noted that he was not directed to express his patriotism by saluting the flag, to affix it to his private property, or display it in such a way that co-workers or the public would assume that he was personally devoted to the flag and all it stands for. It was no more a constitutional issue than if the worker had arrived one morning and found that his boss had hung American flags in every workstation. Accordingly, the employer had every right to fire the worker for insubordination.

By contrast, consider a case decided in December by the U.S. Court of Appeals for the Tenth Circuit. In this case, a man who operated road graders for a Colorado county wrote numerous memos to his supervisors pointing out what he considered to be safety violations and fiscal misman-agement and criticizing the brand of road grader the county had bought. He was warned several times about insubordinate and disruptive behavior, then terminated. When the worker sued under the First Amendment, the court agreed that most of the memos concerned matters of public interest and hence were protected speech. The fact that they were private memos, not public declarations, actually helped the plaintiff's case, because he was using internal channels for dissent rather than going public. The case was allowed to go to trial to determine the employer's liability.

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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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