Educational Resources on Free Speech and Civil Discourse
As part of the Project on Freedom of Speech and Civil Discourse, the Markkula Center for Applied Ethics is committed to making educational materials on this theme more readily accessible to a broad readership. Please look here for the deeper looks into the complexities of this theme and for brief and accessible explanations of some of the key concepts in play. During the Fall Quarter, we'll especially be posting information related to freedom of speech. During the Winter Quarter, we'll be posting materials related to civil discourse. And during the Spring Quarter, we'll be posting materials about outstanding individuals or compelling visions of how to create communities out of broken speech.
FREE SPEECH IN THE WORKPLACE: BACKGROUND
Can you be fired from your job for what you say at your job? Or on your own time outside your job? Or on a Facebook post on your personal Facebook page?
In the last years, these and related questions have arisen, in part driven by the political divide in the United States, in part by the advent of social media, in part by tensions over speech and diversity arising throughout American culture.
And high profile examples of these matters have been plastered across the news: Firing people who marched in Charlottesville on behalf of white supremacy; taking a knee for racial justice as a member of a professional football team; posting a memo about women's place in technology on Google's internal communication system -- and getting fired after doing so; and more.
Here we feature some background on this topic.
First is a link to an article by UCLA law professor Eugene Volokh on the free speech rights of employees:
"Can Private Employers Fire Employees for Going to a White Supremacist Rally?"
Second is a piece from Forbes Magazine on the NFL protests and the limited rights of employees to speech in such a workplace:
"Don't Count on an NFL Defense; Free Speech Rights Aren't Guaranteed in the Workplace"
And next is a short explanatory piece by Santa Clara U Law Professor Gary Spitko on free speech rights in the workplace. Professor Spitko generously wrote this piece for this website. The text follows below:
A Primer on the Meaning of Freedom of Speech in the Workplace
By E. Gary Spitko*
Legal protections for workplace speech are very limited. Such protections might be found in the U.S. Constitution and state constitutions, statutory law, tort law, and contract. In general government employees enjoy greater protections for workplace speech than do private employees.
The First Amendment constrains government employers but not private employers. Thus, it is nonsensical to speak of First Amendment rights against a private employer. Even for government employees, the government acting as employer has far greater leeway to punish speech than does the government acting as sovereign.
Public employer infringement of workplace speech is analyzed under the Pickering/Connick test. Under this test, a court will first consider whether the speech at issue relates to a matter of public concern. If workplace speech does not relate to a matter of public concern, the First Amendment will not protect it.
If the speech does relate to a matter of public concern, the court then will consider whether the speaker was speaking pursuant to her official duties. The First Amendment does not protect workplace speech when the employee is speaking in her official capacity as an employee. Thus, in sum, only if the government employee is speaking as a citizen rather than as an employee on a matter of public concern will the First Amendment potentially protect the speech.
Even then, the employee’s interests (and the public’s interests) in her free speech must be weighed against the government’s interests as employer. In essence, a court will balance the importance of the employee’s speech against the employer’s interest in the efficient and effective operation of the government workplace. Thus, speech of high public concern that poses little threat of workplace disruption is likely to be protected while speech of low public concern that poses a significant threat of workplace disruption is not likely to be protected.
For private employees, a significant source of workplace speech protection is found in sections 7 and 8 of the National Labor Relations Act (NLRA). These NLRA protections do not apply to government employees. The NLRA protects “concerted activities for the purpose of … mutual aid or protection.” Pursuant to this provision, the NLRA may protect workplace speech only if the speech involves or is preparation for group activity, relates to a matter of common concern among employees, and addresses terms or conditions of employment. Even then, the speech will be protected only if it is not unduly disruptive of the workplace.
Additional sources of potential statutory protection for free speech are whistleblower statutes and the anti-retaliation provisions of various employment statutes, particularly nondiscrimination statutes. Tort law rarely protects workplace speech, but the tort of wrongful discharge in violation of public policy has provided some protection. For example, an employer that terminates an employee’s employment because the worker testified truthfully before a legislative committee may be liable in tort. Finally, “just-cause” clauses in employment contracts may provide workplace speech protection. Relatively few U.S. workers, however, benefit from employment contracts with just-cause protections.
* Presidential Professor of Ethics and the Common Good and Professor of Law, Santa Clara University.
DO ALGORITHMS AFFECT FREEDOM OF SPEECH AND CIVIL DISCOURSE?
FREE SPEECH UNDER PRESSURE: NEW APPROACHES
HOPEFUL SIGNS IN A WORLD OF FALTERING SPEECH
Former Cal Chancellor Nicholas Dirks spoke at at Santa Clara University on October 2 on "Free Speech and the University Under Assault." Dirks was chancellor at University of California, Berkeley, during the free speech conflicts in the Winter 2017 featuring Milo Yiannopoulus and riots by antifa protesters that shut down Yiannopoulus' speech. Here's a link to Dirk's talk and an interview with him following the talk conducted by SCU Campus Ethics Director David DeCosse.
After racist graffiti was found scrawled near the rooms of African American cadets at a prep school for the United States Air Force Academy, Lieutenant General Jay Silveira called in all students and staff and gave the following short and powerful talk that denounced hate speech, affirmed free speech, and set clear boundaries regarding speech and membership in the community at the USAAF.
SANTA CLARA UNIVERSITY LAW SCHOOL PROFESSOR ERIC GOLDMAN'S POPULAR "TECHNOLOGY AND MARKETING LAW BLOG" COVERS FREE SPEECH AND CAMPUS LIFE
SCU Professor Eric Goldman runs one of the most important blogs covering the intersection of law, technology, and speech. In these links, Goldman or guest bloggers address key issues related to freedom of speech, technology, and universities. This sampling is a snippet of Goldman's attention to this theme. We invite you to visit his blog for much more.