A Right To Free Speech on the Job? Uh — Not so Much

Happy Independence Day Week! As you lounged at the pool or on the beach with your friends and family, between swimming, cooking and eating, you maybe talked about Donald Trump wrestling CNN, or North Korea, or whether Congress will take away your health care. Maybe you wore a shirt declaring Make America Great Again, or maybe it said Resist!

So you have free speech at the beach, but what about at work?

Well, that depends on your job. The right to freedom of speech and the right to freedom of the press are rights we have against the government. Generally, they aren’t rights we have against private businesses. The government’s power to control speech and the press is limited by constitutions (federal and state) and laws, and a private business’s power to control speech and the press inside its walls is mostly limited by the marketplace.  

What’s the rule about your first amendment rights as an employee?

Here’s the general idea:  If it’s not about your work conditions, or if you aren’t speaking up about safety or discrimination, or if you aren’t whistleblowing, don’t bet on your right to say it or broadcast it.

Here are some examples:

John listens to political talk radio at work. His boss tells him to turn it off. Can he do that?

Yes. Your boss has a right to control what people listen to at work. If they tell you to stick to music, stick to music. If it’s a private company and they blast Fox News all day and you can’t stand Fox News, get another job.

Now, if it’s a government employer, and your boss tries to force you to listen to a particular political viewpoint all day, that’s likely not going to hold up. Again, the First Amendment limits governments more than it limits private businesses.

Barbara hands out flyers inviting her co-workers to a fundraiser for a political candidate. Can she get fired for that?

Sure. Come on, you’re supposed to be working. Did you use the company copier to make the flyers too?

But seriously, if Barbara is inviting her co-workers to her mosque, and other employees have done the same thing, but for churches, and they weren’t fired, the boss could be in big trouble.

Michael testifies truthfully that his employer is stealing money from the government. He loses his job. Does he have a case?

He probably does! The Supreme Court ruled in 2014 that Alabama State University crossed the line when it fired an administrator for doing just that. If you are following the law and reporting a crime, or following the rules of your profession and reporting abuse or neglect of a patient, for example, you have more rights than someone who is upset about the traffic situation between Durham and Raleigh (which is bad).

Tasha, a police officer, speaks up at a public meeting about her working conditions. Can the chief discipline her for that even though she was ‘on her own time?”

Probably. Police officers, like many other employees in government and private business, are supposed to behave as model citizens even when they are off the clock. They can’t just act any way they want in public. OR ON SOCIAL MEDIA. (There have been a lot of cases lately of law enforcement officers commenting about victims of police violence, and not in a good way. They are losing their jobs over it).

There is a long line of cases from our U.S. Supreme Court saying that if a public employee speaks up about a “matter of public concern” (like corruption) then they are protected from discipline. All those cases hold that general working conditions are NOT a matter of public concern.

Sarah is concerned that the new production rules at her plant are going to cause someone to get hurt. She talks with her co-workers about it and they sign a petition asking for a change. Can the boss let Sarah go over this?

Not unless the boss wants the company hauled in front of the National Labor Relations Board. Workers, whether they have a labor union or not, have a right to engage in “concerted activity” to discuss working conditions with their co-workers.

George complains about race discrimination that he sees happening against his co-workers. He is demoted. What does he do now?

Call a lawyer! 

One of our most fundamental American freedoms is the freedom to believe what you want, listen to what you want, and say what you want. These are precious rights that people in some other countries don’t have.  But be careful, because, in the workplace, they are limited.