Reasons Not to Limit Private-Employer-Imposed Speech Restrictions: A Constitutional Right Not to Associate?
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.
Tuesday and yesterday, I blogged the Introduction and the beginning of the argument in favor of such statutes; today, I turn to some arguments against such statutes (and you can see the whole article right now, if you’d like, by looking at the PDF).
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Some have argued that employers have a constitutional right to refuse to associate with people whose political beliefs they reject. But the Court has never extended the right not to associate that far.
The Court has held that the Constitution prohibits government action that substantially burdens “expressive association” by interfering with groups’ ability to speak, including by choosing who speaks for them (more on this shortly). It has held that the Constitution prohibits government action that substantially burdens “intimate association,” so people would likely have a constitutional right to discriminate based on politics—as well as religion, sex, race, and other factors—in choice of spouses, adopted children, close friends, or roommates.
But, in the words of Justice O’Connor’s concurrence in the judgment in Roberts v. U.S. Jaycees, “there is only minimal constitutional protection of the freedom of commercial association”; she said this about membership decision by the Jaycees and similar nationwide organizations, but that even more clearly applies to employment. During the Lochner era, employers’ right not to associate with people who engage in conduct
Article from Reason.com