Free Speech in the Workplace?

Free speech? Sometimes you can’t say whatever you want – especially in the workplace

Free speech is a very hot topic these days. Just a few months ago, Elon Musk said that free speech is a “bulwark against tyranny. ” He tweeted this as he lifted restrictions on previously suspended accounts — including former President Donald Trump‘s. Almost simultaneously, without even a hint of irony, Musk placed new, punitive limitations on journalists (and a college student) for posting Musk’s publicly available flight data.

While boldly inconsistent, it’s important to point out that Musk’s actions are not illegal. Musk owns Twitter and can do and say (pretty much) whatever he wants.

Congress shall make no law…

While the First Amendment of the United States Constitution guarantees our right to speak freely, only Congress is prohibited from abridging this right. This general prohibition was extended to the states under the Fourteenth Amendment, where the freedom of speech, press, religion, assembly, and petition were explicitly incorporated into the “due process clause.”

Yet the First and Fourteenth Amendments are not our only legal tools to protect our expressive freedoms. A rich body of local, state, and federal laws address these freedoms, often in ways that the Constitution does not.

In most states, private companies are not bound by the First or Fourteenth Amendments and are fully entitled to regulate the contents of speech in the workplace. Also, in most states, private employers do not need to consider an employee’s free speech rights when making most employment-related decisions. Employers can regulate internal business communications in nearly any way they want and, in most situations, can discipline or terminate an employee based solely on speech — without significant legal exposure.

However, some states and local governments have passed laws and regulations limiting a private employer’s ability to take action based solely on speech. Some states also prohibit employer action based on lawful off-duty conduct, including using “lawful products” like social media.

Moreover, the federal National Labor Relations Act (NLRA) also protects speech “by, or on behalf of a group of employees concerning the terms and conditions of their employment.” The NLRA was passed in 1935 to provide employees at private-sector workplaces the fundamental right to seek better working conditions by organizing and by designating a representative (i.e., forming a labor union) to engage in collective bargaining, all without fear of retaliation.

When speech becomes problematic

 Not all speech is legally protected. Our understanding of the nuances of unprotected and protected speech comes from decades of case law. The general categories of unprotected speech include:

•  Incitement – In Brandenburg v. Ohio, 395 U.S. 444 (1969), the United States Supreme Court held the First Amendment does not protect speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

• True Threats – In Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court defined true threats as “those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.”

• Fighting Words – In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Supreme Court ruled that “insulting or ‘fighting words,’ those that by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are among the “well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem.”

• Obscenity – In Miller v. California, 413 U.S. 15 (1973), the Supreme Court outlined the standards that material must meet to be considered legally obscene.

• Defamation – Defamation law generally deals with false statements about a person which are made to third parties and damage the person’s reputation. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court ruled that when the allegedly defamed person is a public figure, the defamed person must prove “actual malice” on the part of the speaker (meaning the statement was made with knowledge that it was false, or with reckless disregard of whether it was false or not) in order to make out a successful defamation case. A non-public figure generally must only prove that the speaker was negligent in making the false statement.

• Fraud and Perjury – The First Amendment makes no exception for false or misleading speech. However, some fraudulent statements fall outside its protection, and, for example, the government can impose penalties for knowingly making factual misrepresentations for financial gain. Perjury — deliberately giving false testimony under oath — is also prohibited by federal law. 

• Speech Integral to Criminal Conduct – In Giboney v. Empire Storage & Ice Co.(1949), the Supreme Court ruled that the First Amendment affords no protection to “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” The abstract advocacy of criminal activity remains protected speech.

Time, place, and manner restrictions

While the Supreme Court recognizes several categories of speech that may not have First Amendment protection, it also acknowledges the need for state and local governments to enact reasonable “time, place, or manner” restrictions on speech. As established by case law, these regulations must be “content neutral,” which means that the regulation must apply to all expressions without regard for their content. So far, our courts have generally ruled against laws that purport to regulate the manner of speech but in effect discriminate based on what is said or expressed.

Case law has also established that state and local regulations of speech must be justified by “compelling” governmental interests and “narrowly tailored.” This means the regulation must be understood by the court as necessary — rather than a matter of choice or preference. The regulation must also be very precisely worded to place as few restrictions as possible on First Amendment liberties. Examples of reasonable speech restrictions include: imposing noise level limits, controlling the number of protesters who may occupy a given space or setting, prohibiting early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property.

Local regulations and licensing laws — e.g., requiring parade or demonstration permits — have been broadly accepted as an integral part of the regulatory landscape in most governmental jurisdictions across the nation.

Defamation and privacy law

Laws governing defamation and invasion of privacy are not uniform throughout the United States – the law concerning these subjects is part of each state’s own body of tort law. A tort is broadly understood as an act (or omission) that causes injury or harm to another. It is seen as a civil wrong — an infringement on individual rights —for which the court system imposes liability. The tort of defamation consists of both libel (written statements) and slander (oral statements).

In most states, tort law is primarily derived from common law — the “body of law” based on court decisions — not codes or statutes. The First Amendment constrains each state’s power to individualize defamation and privacy laws. In all jurisdictions, the plaintiff must be able to prove that an allegedly defamatory statement is false and that the defendant is at fault for publishing it. As noted above, in New York Times Co. v. Sullivan, the Supreme Court ruled that in determining “fault,” in the case of statements about a government official or public figure, the plaintiff must prove that the defendant published the false statement with actual malice — meaning the defendant knew it was wrong and untrue, or recklessly disregarded whether it was true or false, and published it anyway.

Questions?

Employers, educators, human resource professionals, and marketing communication specialists are charged with a significant responsibility these days. Because of the intense debate happening right now about free speech — what it is, and what it isn’t —, it’s essential that we all have a clearer understanding of existing regulations about speech in our communities and, in particular, in our workplaces.  We intend to further explore in this space how these topics play out in the world of employment law.

If you have any questions or concerns about our expressive freedoms, and how managing these freedoms can impact your business and community, don’t hesitate to contact Orr & Reno for assistance.

About the Authors: Steven L. Winer and Lynnette V. Macomber

Print this entry