Where Free Speech Goes to Die: The Workplace

In America you can say pretty much whatever you want, wherever you want to say it. Unless, that is, youre at work. Simply put, there is no First Amendment right to free speech in the workplacepotentially perilous for many employees in a polarized political year with a tight presidential race.

Current news provides plenty of examples of just how much leeway managers have to limit their workers freedom of speech, or to encourage political activity among employees. On Aug. 2, an Arizona-based medical supplies manufacturer, Vante, dismissed CFO Adam Smith for berating a Tucson Chick-fil-A employee for working at what he considered a homophobic company. Chick-fil-A has made national headlines recently for its presidents controversial comments about same-sex marriage.

I dont know how you live with yourself and work here, Smith says in a video of the exchange, which was posted on YouTube (GOOG). This is a horrible corporation with horrible values. You deserve better. Vante quickly fired Smith, and posted its regrets about the incident in a statement on the home page of its website.

Bosses and those who work under them are not equal when it comes to free-speech legal claims. Employers have the right to take action against any employee who engages in political speech that company leaders find offensive. With a few narrow exceptions the Constitution and the federal laws derived from it only protect a persons right to expression from government interference, not from the restrictions a private employer may impose, lawyers say.

Employers are not similarly restricted in expressing their political views or encouraging support for a particular candidate or cause. Not only can employers remind employees of the upcoming election and encourage them to vote, but they can base continued employment on whether a worker agrees to contribute money or time to the bosss favorite political candidate, so long as theres no state law prohibiting it. (Eight states and the District of Columbia have laws protecting employees from such mandates.)

Consider the case of David Siegel, founder of Orlando (Fla.)-based Westgate Resorts, the nations biggest time-share developer and the man behind what is planned to be the largest house in America. In February, Siegel told Bloomberg Businessweek that his efforts were largely responsible for the 2000 election of President George W. Bush. Im not bragging, Im just stating the fact: I personally got George W. Bush elected, he said. I had my managers do a survey on every employee. If they liked Bush, we made them register to vote. But not if they liked Gore. Siegel also said his companys call center made 80,000 calls on behalf of Bushs campaign.

While federal statutes such as the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the National Labor Relations Act limit companies rights to fire or hire workers and prevent them from joining unions, these restrictions are based only on race, religion, ethnicity, sex, age, and a few other protected categories. Political opinion isnt protected by any of these statutes.

The First Amendment applies only to employees of the government in certain situations, and all citizens when theyre confronted by the government, says Mark Trapp, an employment lawyer with Epstein Baker Green in Chicago. In other words, freedom to speak your mind doesnt really exist in work spaces.

Its a limitation that retired Air Force Colonel Morris Davis knows well. The former prosecutor of the Guantanamo Bay military commissions, who was appointed by President George W. Bush, resigned over what he perceived as systematic mistreatment and abuse of prisoners by U.S. soldiers at the detention camp. After taking a job with the Library of Congress, he was fired in late 2009 for refusing to recant the contents of pieces published in the Wall Street Journal and the Washington Post criticizing the Obama administrations failure to close the prison.

I was shocked to see the limits of the First Amendment, Morris says. We like to think that our rights are carved in granite, but instead it turns out theyre carved in sand. Morris now teaches law at Howard University; the American Civil Liberties Union has sued the Library of Congress seeking Morriss reinstatement.

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Where Free Speech Goes to Die: The Workplace