Samilow ’19: Protecting the First Amendment in the private sector

Op-Ed Contributor
Thursday, October 26, 2017

Every so often, someone gets fired for political statements that their boss dislikes. Depending on whether or not you agreed with these statements, you’ll probably either bemoan the “decline of free speech” or just shrug that “no one is required to listen to speech they don’t like.” Right now, it is true that private companies can fire employees for any reason that is not prohibited by state or federal law. In a famous 2004 incident, Lynne Gobbell was dismissed from her job for putting a John Kerry bumper sticker on her car. This summer, a Google engineer learned the hard way how perilously vulnerable his position was: He was fired for publishing a memo that argued the STEM gender-gap was partially due to biology. The First Amendment is a shield only against government retaliation, and just 7 percent of Americans are employed by state, local or the federal government. The other 93 percent can be canned for pretty much anything other than attributes such as their race, religion or gender.

It would be ideal for companies to refrain — out of comity and good citizenship — from firing employees for beliefs that do not substantially impact their jobs. But this is not the era of comity and good citizenship. This is the era of online outrage and hyperpartisanship. And what’s more, no business would voluntarily expose itself to public backlash by tolerating unpopular speech. Legal coercion is needed to address this collective action problem. That’s why Congress and states should prohibit large companies from terminating employees for political expression unrelated to job performance.

Why hasn’t such a right been necessary before? Well for one, it’s never been so easy to broadcast your views far and wide. And it’s never been harder to take them back once you do so. Additionally, companies all have email addresses, Twitter accounts and Facebook pages. In the old days, it took honest labor to gin up a mob: People needed to grab pitchforks and torches and pour out into the public square. Now hordes of Twitter users can just kick back and flood a company with threatening or displeased messages until it caves. The modern dynamic of information transfer makes it easier for a lapse in judgment to carry lasting consequences and incite frenzied backlash. 

Critics of this proposal would likely retort that it’s unfair to force companies to ignore public pressure and keep an employee — possibly incurring boycotts and lawsuits in the process. Two answers: First, all similarly-sized companies would have to abide by these laws, so the financial harms would be borne equally by everyone; second, public backlash would be milder and abate more quickly if people understood that the employee cannot be fired so easily.

Furthermore, there are two absolutely essential qualifiers. First, that the companies be “large,” since it would be problematic to require small firms to keep an employee with whom no one gets along. At a small business, broadcasting political views often will have an impact on the workplace dynamic since everyone interacts with each other daily. This is not the case at a company with hundreds or thousands of employees.

The second proviso is that the employee’s expression cannot impact their actual work. Certain forms of political expression can intrude upon job performance. Companies can make a convincing case that racially inflammatory speech damages the work environment and degrades amity among employees. But employers should have to offer some level of tangible and particularized evidence to a judge or jury that this is so. In the case of Lynne Gobbell, it’s implausible to argue that her support for Kerry impacted her job performance, and the termination would likely be found wrongful under this system. In the James Damore incident, the tech giant could certainly make a serious case that his job did not permit him to circulate a manifesto to co-workers, and that its content makes it difficult for him to work with women at Google. But Damore could also make a serious case that it was political speech that did not impair his work as a software engineer nor limit his interaction with other employees. Ultimately, it would be up to a court to hear evidence and figure out who’s right. So at bottom, this legislation wouldn’t allow employees to say anything and keep their jobs, but would simply permit courts to review the termination and decide if it was wrongful. There’s an important deterrent factor at work, too. If employers knew that their workers could successfully litigate such a dispute, they would be hesitant in the first place to fire someone unless their statements had made it absolutely untenable to continue working together. 

Overall, relatively few people have actually been fired simply for their political beliefs, which might make this discussion seem irrelevant or abstract. But that only means that most people either have indifferent or tolerant employers, or else are careful to keep their views private. Whatever detriments there are to this proposal — and there are many in addition to the ones I’ve pointed out — they are outweighed by the compelling public interest in promoting people’s ability to speak freely and avoid self-censorship.

Jared Samilow ’19 can be reached at jared_samilow@brown.edu. Please send responses to this opinion to letters@browndailyherald.com and other op-eds to opinions@browndailyherald.com.

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