Speech Urging an Employer to Fire an Employee

My post about the Minnesota trial court order forbidding a parent to urge a Catholic school to fire a gay teacher led to several commenters’ suggesting that such speech may indeed be restricted, at least if it consists of more than just one e-mail. Such speech, the theory is, may indeed constitute “harassment,” if it’s repeated (and perhaps if it’s aimed at not just the current employer but future employers, if this employer does fire the employee). Or, the argument goes, it could be punishable under the tort of intentional interference with business relations.

I think that’s wrong. The First Amendment, it seems to me, protects people’s rights to express their views, including when the views are aimed at persuading others to act, and including when the action is firing an employee, cutting off a contract with a contractor, and so on. If the speech falls within an existing First Amendment exception, for instance because it’s a threat of criminal conduct or a knowingly false accusation, then the speech can be punished. But outside those exceptions, speech urging the legally permissible firing of a schoolteacher — or a spokesman or a radio talk show host — is as protected as speech urging anything else.

The Supreme Court has expressly held that the tort of intentional interference with business relations is constrained by the First Amendment, and that speech aimed at producing economic pressure is constitutionally protected notwithstanding the tort. This happened in NAACP v. Claiborne Hardware (1982), where the NAACP organized a boycott of white-owned businesses aimed at pressuring them to hire black employees (and aimed at other things as well). The Court reversed an interference with business relations tort verdict, on the grounds that “Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.”

Speech urging the firing of an employee is just as much advocacy as speech urging the hiring of an employee, and both can be “coerc[ive]” through the use of economic and social pressure. If the organization of a massive boycott aimed at coercing businesses is constitutionally protected, then the sending of a few e-mails — or even of many e-mails — aimed at pressuring a school to fire an employee is likewise protected.

Indeed, such speech urging the firing of employees (or the cancellation of contracts with contractors) is relatively common. Consider, for instance, the 1970s boycott against Florida orange juice aimed at getting the companies to stop using Anita Bryant as a spokeswoman; Bryant had been a prominent anti-gay activist. In my home town, there was a 1990s boycott of sponsors of black conservative talk show host Larry Elder’s radio show, aimed at getting the radio station to take him off the air. In 1990, there was public pressure that caused CBS to suspend 60 Minutes commentator Andy Rooney for allegedly making a racist comment; in 1988, public pressure that caused CBS to fire Jimmy “The Greek” Snyder on similar grounds. To be sure, there may often be ethical distinctions among these cases, and between these cases and calls for (lawfully) firing a Catholic school teacher because he’s allegedly gay (see generally my article on Deterring Speech: When Is It “McCarthyism”? When Is It Proper?, 93 Cal. L. Rev. 1413 (2005)). But I think the First Amendment equally protects all such advocacy.

Indeed, consider a hypothetical based on the case that started this discussion: Say a parent concludes that a schoolteacher is an anti-gay advocate, and he concludes that this makes the teacher a poor role model and a less effective educator. Say that the parent sends e-mails to the school urging the school to fire the teacher, tries to drum up support for this among other parents, writes letters to the editor about this, and so on. Should such speech be restrictable, on the grounds that it’s somehow “harassing,” or improperly interferes with the teacher’s business relations with the school?

I think the answer would be “no”; such speech is constitutionally protected advocacy, despite the harm it may cause to the teacher’s job prospects. Given the First Amendment requirement of viewpoint neutrality (and, generally, of content neutrality), the same must be true of speech aimed at getting a teacher fired for his supposed homosexuality. And that I think there’s a practical and moral difference between a teacher’s saying anti-gay things and a teacher’s being gay can’t justify the law’s restricting the speech of people who take a different view.