Speaking Freely

Are you breaking First Amendment law when you fire that loudmouthed employee?
Magazine Contributor
7 min read

This story appears in the August 2000 issue of Entrepreneur. Subscribe »

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 policy has become a constant irritant in the office. The U.S. Constitution guarantees citizens a right to , 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 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, . "The courts have defined fairly narrowly the types of expression that are protected." Clemow, chair of the firm's labor and 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, , teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

Balancing Interests

Consider a Wisconsin case decided May 9 by the U.S. Court of Appeals for the Seventh Circuit. A firefighter with a long history of disciplinary action had such a strong personal vendetta against the fire chief that he carried a protest sign at the chief's swearing-in ceremony. The department finally fired the fire-fighter for insubordination after he faxed a "news release" to local newspapers accusing the fire chief of showing favoritism to another employee being investigated for questionable conduct because, the fire-fighter declared, both were lesbians. The firefighter sued, charging that the department had violated his right to . Both the district court and the appeals court ruled that while the press release concerned matters of public concern (lenient disciplinary action and possible favoritism within the fire department), the fire-fighter's interest in expressing his opinions did not outweigh the 's interest in promoting efficient public services.

Many of the cases in this area concern public employees, who have slightly more because an action taken by a public employer amounts to action taken by the government itself, Clemow notes. "But even a public [employee] cannot use his or her position as a platform for spreading political views," says Clemow. For instance, school teachers can get in trouble for advocating a political agenda in the classroom.

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 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.

Questions To Ask

If you're trying to decide whether a particular employee's speech is protected by the Constitution and whether you can take action, Clemow advises considering the following questions:

  • Is the employee expressing views on a matter of legitimate public concern, or is it a purely personal issue or gripe? Personal gripes are definitely not protected.
  • Are the specific employee's views expressed in a public forum or in the private workplace on company time? Does the employee's message disrupt your operations or interfere with your business interests, or is it just unpopular?
  • Could the employee's message be reasonably construed as whistle-blowing about some employer conduct that's illegal or contrary to public interest? If so, you'd better watch your step.
  • If the employee is addressing an internal issue of no public concern, could he or she be seen as speaking for others as well, engaging in "concerted activity" protected by the National Labor Relations Act?
  • If your answers to the above questions suggest that the speech in question might be protected, it's a good idea to get professional advice before taking action.

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