Should the Law Limit Private-Employer-Imposed Speech Restrictions?
The Constitution limits the government’s—including government employers’—power to discriminate based on race, sex, or religion. A federal statute and statutes in nearly all states applies these norms to private employers as well. Many libertarians disapprove of any such restrictions on private employers; but for nearly 60 years, American law has imposed such restrictions.
The Constitution also limits the government’s—including government employers’—power to restrict people’s speech and political activity. And statutes in many states apply this norm, to some extent, to private employers as well. Indeed, a few of them have done this for 150 years (and even longer as to employers’ discrimination against employees based on how the employees voted).
Ten years ago, I wrote a descriptive and analytical law review article called Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, which aimed to catalog these often-little-known statutes. This year, I’m returning to the subject, trying to analyze the strongest arguments for and against such statutes. The article (Should the Law Limit Private-Employer-Imposed Speech Restrictions?) will be published later this year in a Journal of Free Speech Law symposium issue, together with other articles that stemmed from an Arizona State symposium on Non-Governmental Restrictions on Free Speech; and this week and next I’d like to serialize it here.
Let me begin with the Introduction and the beginning of the argument in favor of such statutes, though you can read the entire article in PDF if you’d like; future posts will also of course cover the arguments against such statutes.
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About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation. Of course, that means about half don’t. Which jurisdictions are correct? And, if private employers should generally be barred from firing, disciplining, or perhaps even declining to hire workers based on their speech, which sorts of speech should be protected?
Existing private employee speech protection statutes
(the darker the shading, the more protection)
I. Arguments for Protecting Private Speech
A. Democratic Self-Government
To begin with, the threat of losing one’s job is a powerful deterrent to most speakers. If the ability to speak freely, and without distortion by the threat of governmental punishment—or even the threat of loss of government benefits—is a necessary precondition of democratic self-government, then legislatures ought to be concerned about the democratic process being distorted by private employers as well.
This is likely why nearly all states forbid discrimination based on how a person has voted: Private economic power ought not be used to interfere, through threat of coercion of employees, with the political process. But American law has long recognized that for voting to be meaningful, the public also needs to freely discuss candidates and issues before voting on them, and to speak out in ways that influence representatives between elections. This suggests that private employer sanctions against employee free speech interfere with democratic self-government
Article from Reason.com