Should the Law Limit Private-Employer-Imposed Speech Restrictions? Some Other Reasons Why

As I mentioned yesterday, 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.

Yesterday, I blogged the Introduction and the beginning of the argument in favor of such statutes, focused on the democratic self-government theory of the First Amendment; today, I add a discussion of the search for truth, self-expression, and autonomy theories, plus a bit on negative theories. Future posts will also of course cover the arguments against such statutes (and you can see the arguments right now, if you’d like, by looking at the PDF of the article).

[* * *]

A. Search for Truth

The same argument in favor of the statutes as the one given with regard to democratic self-government largely applies to free speech as a tool for searching for truth, or for promoting the marketplace of ideas.[1]

The analysis is not quite identical: For instance, while we may resist the use of coercive economic power as a means of influencing democratic processes, we might not have the same reaction to it as a tool for influencing debates about other matters. But in practice, most facts and ideas that fall within the rubric of “the marketplace of ideas”—or for which we want there to be a “search for truth”—are closely connected to political debates, whether the facts and ideas relate to morality, religion, science, history, or even art, music, and literature. And, again, so long as we think governmental restrictions on speech undermine, simply by their practical deterrent effect, the search for truth and the marketplace of ideas, we should recognize that private employer restrictions can undermine those values as much.[2]

B. Self-Expression and Autonomy

The same applies to free speech as self-expression[3] and as a tool for growth as autonomous citizens:[4] The threat of losing one’s livelihood can certainly sharply interfere with these values as well.

The bans on religious discrimination in employment offer a helpful analogy, I think. Those laws promote people’s ability to exercise their religions without the fear of economic disaster if those religions prove unpopular. Likewise, bans on employer retaliation based on employee speech do the same for people’s ability to express themselves politically or philosophically rather than religiously.

Indeed, Title VII’s “religious accommodation” requirement already protects religiously motivated speech, as part of its protection for religiously motivated practice. An employer may not dismiss an employee for religiously motivated speech, even if the speech violates a generally applicable work rule, unless it can show that tolerating the speech would cause an “undue hardship,” meaning a “more than de minimis cost.”[5] Thus, for instance, courts have concluded that employers might have to allow employees to sign their e-mails with “In Christ,”[6] or to say “God bless you” and “Praise the Lord” at work;[7] might not be allowed to force employees to wear rainbow insignia that they and others perceive as supporting gay rights;[8] and might not be allowed to force employees to certify that they “value the differences among all of us.”[9]

The same would even more clearly apply if, for instance, the employer fired an employee for engaging in a religious protest outside an abortion clinic or military recruitment office, under some sort of “no controversial off-duty speech” policy. To be sure, having to tolerate some speech, especially on-the-job speech, may indeed be seen as “undue hardship.”[10] But Title VII does provide at least some protection for religious speech, though not unlimited protection.

Protection for employees’ speech generally would simply extend this protection to nonreligious speech as well (though many of the existing employee speech protection statutes would set a higher bar for the employer than just having to show “undue hardship”). It would avoid what would otherwise be poten