Question: To what extent can companies limit your first amendment right of free speech and consequently fire you?
Within the past three years, there has been extensive controversy in regards to the first amendment and its extent especially into the private sector. Companies ranging from major corporations including Google and the National Football League to small local businesses such as Berkeley’s Top Dogs have consistently limited the rights of their worker’s first amendment right of free speech. Technology has allowed companies to expand into the private lives of their employers. This infringement on the employee’s life outside of work has resulted in employees to be chastised and in some extreme cases be fired.
Currently, in the major league sports, there is prolific participation of athletes kneeling down during the national anthem as a passive protest against the state of the nation. In the National Football League, Colin Kaepernick began a tradition of kneeling on the turf when the police attacks on citizens came into the limelight as a sign of protest against it. This led to significant controversy within the league. Consequently, he hasn’t had a position on a NFL team since 2016. At the beginning of the 2017-2018 NFL season, however, entire teams began to kneel as a sign of protest against the nation. This action elicited a poorly-received response from President Donald Trump who posted on Twitter, “If a player wants the privilege of making millions of dollars in the NFL,or other leagues, he or she should not be allowed to disrespect our Great American Flag (or Country) and should stand for the National Anthem. If not, YOU’RE FIRED. Find something else to do!” Due to massive outrage, another major league, National Basketball Association, made a statement regarding the issue. Adam Silver, the NBA commissioner, announced that all players and coaches are required to stand to up for the national anthem when it is played at the beginning of every game. With all this talk of whether or not players were allowed to protest against the national anthem, the question many began to ask was whether or not this action was illegal. To the dismay to a large proportion of the American population, the answer is actually no according to the 1989 Supreme Court case of Texas v. Johnson. The background issue stemmed from the 1984 Republican National Convention in Dallas, Texas. Gregory Lee Johnson, the defendant, flew into Dallas to protest Ronald Reagan and his policies. As a part of his protest, he burned the American flag. This act was deemed a violation of the Texas Venerated Objects Law. When taken to the Supreme Court, they exonerated Johnson for his actions deeming that the first amendment freedom of speech protects unpopular speech like that of Johnson’s. Using this as a precedent for the issue in the NFL and the NBA, the athletes can protest against the National Anthem without the employer firing them.
Earlier this year, Charlottesville was the scene for political activism. At the University of Virginia, many pro-Trump supporters clashed with anti-Trump supporters. Many citizens and federal leaders condemned the “egregious display of hatred, bigotry and violence on many sides.” The protest began as opposition to the removal of the Robert E. Lee statue in Charlottesville, Virginia. However, violence began to brew resulting in intense riots with the police attempting to defuse the tension. During this entire process, a Top Dog employee was ousted by Twitter user @YesYoureRacist. Consequently, he resigned with mass support and pressure from people. Top Dog released this statement: “We ide ourselves on embracing and respecting all our differences and every individual’s choice to do as that person wishes within the boundaries of the law. We do not endorse hatred or any illegal conduct. It simply is not part of our culture. We do respect our employees’ right to their opinions. They are free to make their own choices but must accept the responsibilities of those choices.” The response from Top Dog was a very good example of what companies should do when employees take part in activities that contradict their beliefs. As much as companies despise the speech of their employees outside of the workplace, they cannot fire them over it as they have not caused any problem within the workplace. This is clearly stated in the Title VII of the Civil Rights Act of 1964. This federal law states that there cannot be discrimination against public and private employees along any bases. It also clearly states that a company cannot retaliate against an employer for protected activities which includes violating the Equal Employment Act.
Recently, Google fired James Damore over his memo on the company’s Equal Employment Act. James Damore stated in his memo that due to Google’s culture, many ideas are not discussed. He questioned and critiqued the effectiveness of Google’s diversity program. Due to this ten page memo, he was fired. He is now planning on suing Google for unlawful termination as Google violated the Federal Labor Law. As stated under Section 7 of the National Labor Relations Act, employers can’t fire or prohibit employees from participating or promoting activities that are intended on improving the workplace. James Damore merely intended to promote diversity within the Google campus, and that begins with admitting that there is a problem with the current system. James Damore exposed the problem so it can be fixed.
Companies need to be aware of court cases and federal laws in the United States because as much as the company may despise the speech provided by their employee, the cannot fire them for doing activities outside of the workforce. While within the premises of the workplace, employers can limit what their employees say.
Sources
-Link to Top Dop Employee Fired