Americans take a certain comfort in the First Amendment, which protects us against infringements on our exercise of political speech. Except that it doesn’t.
The First Amendment says that “Congress shall make no law … abridging the freedom of speech …” It says nothing about private entities abridging speech, and many do. Employers fire people all the time for expressing views contrary to the employer’s, or for engaging in political activity at all. As Lewis Maltby can tell you, it’s perfectly legal.
Formerly the director of the American Civil Liberties Union’s employment rights office, Maltby today is president of the National Workrights Institute and author of “Can They Do That?”, a 2009 exposé of the myriad ways in which private employers can curtail what most people assume are inviolable civil liberties.
Some examples: Lynne Gobbell, an Alabama resident who, in a widely reported incident, was fired for refusing to remove a “Kerry for President” bumper sticker from her car; Glen Hillier, a West Virginia resident fired for asking President George W. Bush at a 2004 campaign rally a question that a client of his employer found offensive; and Nate Fulmer, a South Carolina resident fired by his conservative Christian boss for writing blog posts critical of organized religion.
There are no federal protections against private-employer intrusions on speech rights, Maltby says, and what protections there are reside at the state level. (Most state constitutions protect speech rights from government restrictions, similar to the federal Constitution.) Outside of increasingly rare union contracts — union membership in the private sector plunged to 6.4 percent of workers in 2016 from 17 percent in 1983 — your employer can effectively own your rights unless they are expressly protected by law.
While some states have laws aimed at protecting employee speech rights, Maltby writes in his book, “most of them are virtually useless.” Missouri, by contrast, is among the few states with reasonably strong protections, prohibiting employer restrictions on activities such as soliciting funds for political purposes or signing a recall petition. “If Lynne Gobbell or Glen Hillier had lived in Missouri,” wrote Mr. Maltby, “they would have been protected.”
I chatted last week by email with Maltby, who had this to say:
The Framers were obviously concerned with Congress’s power to stifle speech. Did the Constitutional Convention address private constraints on speech?
Lewis Maltby: The framers responded to the world they knew. They had experienced government abuse of power and went to great lengths to create a constitution that would prevent it in the future. Abuse of individual rights by private employers was not a serious problem in the Framers’ world. Most people worked for themselves as farmers or skilled tradesmen. No one worried about Paul Revere’s silversmith shop stifling free speech.
The world today is very different. Multinational corporations are richer and more powerful than most countries. Sadly, they often use this power to abuse the human rights of employees. If the Founders were alive today, they would include protection against corporate abuse in the Constitution.
To the extent that employers essentially own speech rights, is it because legal precedent or legislation authorizes them to, or because they’ve simply assumed this authority and have gone unchallenged?
LM: In American law, everyone is free to do whatever they want unless there is a law saying they can’t. This applies to groups of people as well as individuals, including corporations. Employers were allowed to discriminate based on race until Congress passed the Civil Rights Act of 1964, making it illegal. While the United States has done a reasonably good job of enacting laws saying that employers cannot discriminate, we have done virtually nothing to enact laws prohibiting employers from abusing free speech, privacy or other human rights.
Are there legal challenges to employer powers under way now at either the state or federal levels?
LM: There are no significant court challenges to employer abuse of freedom of speech. In the absence of constitutional protection or a statute, there is very little the courts can do.
What about legislative remedies?
LM: There are no significant efforts to enact legislation to protect free speech or other human rights at either the federal or state level.
Which states do the most to protect employee speech rights, and which the least?
LM: A handful of states have laws protecting employee free speech outside the workplace, including New York, California, Colorado, California, Montana and North Dakota. No states are currently considering such legislation.
Is there a moral contradiction in the fact that U.S. corporations have “personhood” but the actual persons who work for them don’t?
LM: The core problem isn’t that employers are considered “persons.” A corporation may not be a human being, but its management and shareholders are. And other types of organizations also have rights. If the ACLU has the right to advocate publically for its perspective, so should General Motors. If NARAL (National Abortion and Reproductive Rights Action League) can’t be punished by the government without a fair trial, neither should Xerox.
The real problem is that we haven’t enacted laws to require employers to respect employees’ freedom of speech and other human rights. Corporate censorship is much more common than most people recognize. Many employers conduct Internet searches of employees and fire anyone who says something that displeases management. Even more common is the practice of Internet searches of job applicants. Millions of people have lost job opportunities — because a prospective employer didn’t like something they did or said — and they don’t even know it.
If an employer can compromise an employee’s speech rights, what’s to stop it from compromising other rights, say by demanding that employees refrain from registering to vote? Can employers effectively edit their employees’ civil liberties, allowing them to exercise this right but not that one?
LM: There are some state laws that are intended to prevent employers from controlling how employees vote. These laws are probably unnecessary; no one knows which lever you pull once you’re in the voting booth. But your boss can probably fire you for registering to vote. I’ve never seen it done, but can’t think of a law against it.
And, in almost every state, your boss can tell you to remove a bumper sticker from your car for a candidate he doesn’t like (or put on a sticker for a candidate he likes). Your boss can also fire you for having a lawn sign for a candidate he doesn’t like, for posting a statement on your Facebook page or personal blog he doesn’t like, or from writing a letter to the editor that he doesn’t like. He can fire you for saying why you support a presidential candidate while having lunch in the company cafeteria or the neighborhood bar. Your boss can fire you for going to a political rally for a cause he doesn’t like. So, it’s certainly true to say that employers can use their financial power to control employees’ free speech and political behavior.
Are employers themselves the chief obstacles to expanding speech protections, or is it a matter of conflicting legal principles?
LM: Employers resist all efforts to restrict their behavior. The Chamber of Commerce opposed child-labor laws when they were first introduced. Their argument is always the same: “Tampering with the free market will damage our economy and diminish our standard of living.” No matter how many times this proves to be wrong, employers still make the argument and legislators still accept it.
No matter what the issue, one organized group usually gets its way unless there is another power group opposing them. Organized labor is the only group in Congress that fights for employees’ rights. But unions are not nearly as strong as they use to be, and they focus most of their efforts on bread-and-butter issues like pay, safety and medical care.
If voters were to demand protection for freedom of speech, Congress would act. But when members of Congress look at the letters, email and telephone calls from their constituents, protection for free speech and other human rights is never mentioned. If we want Congress to protect our freedoms, we need to speak up.