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Fired for Blogging? -- Extraconstitutional Speech Protections:

People have often asked: May a private (nongovernmental) employer fire an employee for blogging things that the employer dislikes?

The First Amendment answer, of course, is that the First Amendment doesn't apply to actions by private employers. Contrary to what some believe, that's true even when the private employer receives substantial government subsidies. Government pressure on a private employer to fire an employee based on the employee's speech may violate the First Amendment. But the private employer's independent decision to fire the employee does not violate the First Amendment, even if the employer is subsidized by the government.

But there's more to the law of speech restrictions than the First Amendment. There are also what I call extraconstitutional speech protections -- protections, secured by state or federal statutes, state constitutions, or state or federal judge-made common law rules -- that go beyond what the First Amendment requires.

Some extraconstitutional speech protections protect people against government-imposed speech restrictions, even restrictions that don't violate the First Amendment. State journalist's privilege statutes are an example. Another is libel retraction laws, which reduce a defendant's libel liability (even liability that is otherwise constitutionally valid). Another is 47 U.S.C. § 230, the statute that immunizes (among other things) Internet service providers from liability for what users say, and bloggers from liability for what commenters say. Other examples are anti-SLAPP statutes, and the media exemption from campaign finance laws.

But other protections, which are often more controversial but still quite important, protect people against private retaliation for speech. A California statute, for instance, often bars private universities and most private high schools from disciplining students for their speech. In some states, owners of private shopping malls are restricted from evicting members of the public who are leafleting, gathering initiative petitions, and the like.

And it turns out that several jurisdictions -- California, Colorado, Connecticut, D.C., Louisiana, New York, North Dakota, Puerto Rico, South Carolina, Washington, Seattle, Madison, Urbana, and possibly Illinois, Montana, Nevada, North Carolina, Pennsylvania, and Wisconsin -- limit private employers' ability to fire employees based on the employee's speech.

The limitations don't provide the same protection that people enjoy with respect to government action. Just because you can wear a "Fuck the Draft" jacket on the street without being prosecuted doesn't mean that you can wear it to work without being fired (even in the jurisdictions I mentioned). You might even be punishable under some circumstances for wearing it outside work. But the protections are substantial, and important, both for employees and for employers. These laws may be criticized, both on libertarian and pragmatic grounds; I hope to post later some thoughts on the policy arguments for and against these laws. Nonetheless, they are the law in their jurisdictions, and are worth discussing whether one agrees with them or not.

Over the next several days, I'm hoping to put up a bunch of posts about various such statutes, and various problems the statutes raise.

Related Posts (on one page):

  1. Fired for Blogging? -- California, Louisiana, and South Carolina:
  2. Fired for Blogging? -- Extraconstitutional Speech Protections:
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Fired for Blogging? -- California, Louisiana, and South Carolina:

Say that you blog your views about race relations, the Iraq war, or President Bush. Your boss doesn’t like it; he might think that this speech might alienate coworkers or customers, or he might just disapprove of the speech and therefore of you. May he discipline you, or require you to take down the blog?

Well, say that you are in California, Louisiana, or South Carolina, where the law provides:

Cal. Labor Code § 1101: No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities.

Cal. Labor Code § 1102: No employer shall ... attempt to coerce or influence his employees through or by means of threat of discharge ... to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

La. Rev. Stat. § 23:961: [N]o employer having regularly in his employ twenty or more employees shall make … or enforce any ... policy ... preventing any of his employees from ... participating in politics, or from becoming a candidate for public office … [nor] adopt or enforce any ... policy which will ... tend to control or direct the political activities or affiliations of his employees, nor ... attempt to coerce or influence any of his employees by means of threats of ... loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character....

S.C. Code Ann. § 16-17-560: Whoever shall … [discharge from employment] any citizen because of political opinions or the exercise of political rights and privileges guaranteed to every citizen of the United States by the Constitution … thereof ... shall be guilty of a misdemeanor [and subject to civil liability]….

1. The first question you (and your boss) need to ask is: What do “political activities” mean? Is the protection limited to electoral politics, in the sense of participation in political campaigns? If so, your speech probably wouldn’t qualify, unless it’s tied to an active campaign. Or does it cover political speech more broadly, which includes a wide range of commentary about public policy and legislation, as well as about campaigns? Well, it’s hard to tell for sure. Some jurisdictions -- Seattle, Madison, and Champaign -- ban discrimination based on political ideology, beliefs, or affiliation, and expressly define those terms broadly, for instance to include “conduct, reasonably related to … any idea or belief … relating to the purpose, conduct, organization, function or basis of government and related institutions and activities.” But the laws that I describe include no such definitions.

California courts, it turns out, have interpreted “political activities” to include any “espousal of a candidate or a cause,” including broad social movements such as the gay rights movement. Under this definition, the cause of ending the war, of criticizing the President, or of protecting whites against the alleged depredations of other races, would all qualify.

A federal trial court applying South Carolina law, on the other hand, took a different view, limiting “political rights and privileges” to “matters directly related to the executive, legislative, and administrative branches of Government, such as political party affiliation, political campaign contributions, and the right to vote”; displaying the Confederate flag, the federal court said, isn’t included. How will higher courts interpreting South Carolina law and Louisiana law decide this? Hard to tell for sure.

2. A second question: What if your speech undermines the employer’s business, either because it criticizes the employer, or because it’s controversial and makes coworkers and customers angry?

Read literally, the California, Louisiana, and South Carolina statutes have no exceptions for such situations. A Louisiana appellate court actually specifically held that the Louisiana law protects employee speech even when it alienates customers, thus makes the employee “a detriment to his employer.” (A federal district court interpreting California law, suggested that there is an implicit exception “when the employee’s political activities are patently in conflict with the employer’s interests,” citing a California appellate court case on the subject; but it turns out that the cited case doesn’t really support that proposition.) I can certainly see why a court would be tempted to infer an exception from the law, especially by analogy to the rule that government employee speech loses its First Amendment protection when it sufficiently interferes with the employer’s business. But I can also see a court reading the statute literally, as categorically protecting employee speech, just as the Louisiana court did.

3. Finally, you have to pay attention to the specific text of each statute -- but also to the precedents in your jurisdiction (and perhaps in other jurisdictions) that may often depart quite a bit from the text. For instance, the California law applies just to employees, but the California Supreme Court has interpreted the law as prohibiting discrimination against applicants for employment. Likewise, though some of the statutes might be read as applying only to discipline pursuant to an express “policy,” a Louisiana appellate court has concluded (sensibly, I think), that “the actual firing of one employee for political activity constitutes for the remaining employees both a policy [prohibiting the activity] and a threat of similar firings.”

So that’s one kind of statute; in the next few days, I’ll blog about some other kinds. Those who want more details, including more excerpts from the statutory text, and citations to various cases, can find them here.

Related Posts (on one page):

  1. Fired for Blogging? -- California, Louisiana, and South Carolina:
  2. Fired for Blogging? -- Extraconstitutional Speech Protections:
7 Comments