Reasons Not to Limit Private-Employer-Imposed Speech Restrictions: The Employer’s Own Free Speech Rights?
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 continue discussing 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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Freedom of Symbolic Expression
Nor can employers argue that firing employees based on their speech, or refusing to hire them, is symbolic expression protected by the First Amendment. In Rumsfeld v. FAIR, the Court rejected law schools’ argument that excluding military recruiters from their on-campus recruiting programs was constitutionally protected symbolic expression. Such exclusion “is not inherently expressive,” since “[a]n observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school’s interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.” And when “[t]he expressive component of a law school’s actions is not created by the conduct itself but by the speech that accompanies it,” those actions are “not so inherently expressive that [they] warrant protection under O’Brien.” “[I]f an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes,” the court need not “apply O’Brien to determine whether the Tax Code violates the First Amendment.”
The same would apply here. By itself, the firing of an employee (or the refusal to hire the employee) doesn’t convey a message. An observer who learns of it “has no way of knowing whether the [employer] is expressing its disapproval of [the employee’s speech, religion, race, sexual orientation, or the like]” or has instead found that this employee or applicant hasn’t been doing a good job. “The expressive component of [the employer’s] actions is not created by the conduct itself but by the speech that accompanies it.” Indeed, that’s why job discrimination based on other criteria, such as religion or race, isn’t treated as constitutionally protected symbolic expression.
And even if firing someone is viewed as “inherently expressive,” that would only subject the ban on discrimination based on speech to O’Brien scrutiny. That is generally a deferential test, which requires “narrow tailoring” (and not in the strong sense that term carries under strict scrutiny) to a “substantial government interest.” The interests in protecting political expression are likely to qualify as important enough, for the reasons given in Part I. And the law is likely to be narrowly tailored for the same reason that the ban on public accommodations
Article from Reason.com