Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation

My article on this subject just came out, but I neglected to blog about it. Here is the Introduction, which briefly explains the issue, and provides a very quick — and, I hope, interesting — bit of history about it. The article itself is aimed at describing the law, both by quoting the relevant statutes and by summarizing the court decisions interpreting them. I am not expressing view in favor of or against such statutes.

About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation. Some of these jurisdictions protect employee speech generally. Others protect only employee speech on political topics. Still others protect only particular electoral activities such as endorsing or campaigning for a party, signing an initiative or referendum petition, or giving a political contribution. Moreover, though the matter is not clear, federal law may often protect private employees who speak out in favor of a federal candidate. To my knowledge, these protections have not been systematically cataloged, and some have never been cited in a law review article.

Some employee free speech protections were enacted following the Civil Rights Act of 1964, which banned employment discrimination based on race, religion, sex, and national origin, and are modeled on that statute. But many of the protections long preceded the Act, and similar state civil rights laws. Indeed, the first date back to 1868.

These early protections for private employee speech and political action were likely based on the very first American laws banning employment discrimination by private employers — voter protection laws, which barred employers from discriminating against employees based on how the employees voted. (Recall that this was the era before the secret ballot.) As early as the 1700s, several colonies and states barred any “attempt to overawe, affright, or force, any person qualified to vote, against his inclination or conscience,” and some also barred, “after the … election is over, menac[ing], despitefully us[ing] or abus[ing] any person because he hath not voted as he or they would have had him.”

These voter protection laws seem to have covered threats not just of physical violence but also of legal coercion, and they may have covered threats of economic retaliation as well — a similarly general 1854 English statute was applied to threats of economic retaliation and not just those of physical attack. The bans on threats, from 1721 to the 1860s, were included alongside bans on bribery; given that offering to provide a financial benefit in exchange for a vote was forbidden, it makes sense that threatening to deny a financial benefit in exchange for a vote would have been forbidden as well.

And some voter protection laws enacted in the mid-1800s explicitly covered threat of economic retaliation. The proposed federal criminal code drafted in 1828 by Edward Livingston — who had earlier participated in drafting the Louisiana Civil Code, was at the time a Congressman (and soon to be Senator) from Louisiana, and would later become Secretary of State — expressly covered “threats of withdrawing custom or dealing in business or trade … or any other threat of injury” aimed at influencing votes. The 1832 proposed D.C. criminal code would have done the same. Laws using this language were enacted in Mississippi (1839), Iowa (1850), the Nebraska Territory (1855), Illinois (1871), and Delaware (1881).

Likewise, in 1839, Pennsylvania expressly barred threats of “loss of any appointment, employment or pecuniary benefit” aimed at “influenc[ing] any voter.” Also in 1839, Ohio made it a crime for “any person [to] … use any threat or coercion to procure any voter in his employ … to vote contrary to the inclination of such [employee].” Several years later, Connecticut (1846) and Massachusetts (1852) barred “threatening to discharge [an elector] from … employment” in order to influence a vote.

By the 1860s, some states also barred discrimination based on past votes rather than just threats aimed at future votes. This was especially visible in a burst of such lawmaking in the Reconstruction-era South, triggered by the Republican concern that southern employers were pressuring their employees to vote against the Republicans. (In some instances, Union generals administering the military occupation of the South issued such rules as military orders, violations of which were triable before military commissions.)

It is this post-Reconstruction batch of voter protection laws that led to the first protections that went beyond voting to speech. In 1868, Louisiana and South Carolina banned discrimination against most private employees based on “political opinion.” And several decades later, both the voter protection laws (which I will not focus on in this Article) and the statutes protecting political opinion and political activity began to spread to other states.

I am not sure such restrictions on private employers are a good idea. First, employers may have a legitimate interest in not associating themselves with people whose views they despise. Second, employees are hired to advance the employer’s interests, not to undermine it. When an employee’s speech or political activity sufficiently alienates coworkers, customers, or political figures, an employer may reasonably claim a right to sever his connection to the employee. Perhaps such statutes should not be copied by other states, and perhaps they should even be repealed, which is what happened in 1929 when Ohio repealed its “political activities” statute.

But whether the statutes are sound or not, they strike me as worth investigating. I therefore thought it would be useful to publish a list of the statutes that I could find and a summary of some of the key court decisions interpreting those statutes.