Employee 1st Amendment Rights - Have any outside of work?

[gkisystems]

What is the name of your state (only U.S. law)? Wisconsin.

Is there any case law that you are aware of that discusses first amendment rights (free speech) of employees outside of the work place? For example, may an employer legally censor and/or sanction an employee for comments the employee makes publicly, even if those comments are unrelated to said employer?

Presume that the employer is not a government agency or owned by a government body, but a private business publicly traded on a stock exchange. You may also presume that the private business sells to the government, but that may not have any bearing whatsoever on this circumstance.

 

[ecmst12]

Have you READ the constitution or bill of rights? Freedom of speech refers to GOVERNMENT restriction. Your employer can fire you for almost any reason they want, including not liking something you said in or out of work about NEARLY any topic under the sun.

 

[justalayman]

have you actually read the 1st amendment?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

CONGRESS SHALL MAKE NO LAW.


that doesn't mean your employer is bound by that

 

[gkisystems]

have you actually read the 1st amendment?




CONGRESS SHALL MAKE NO LAW.


that doesn't mean your employer is bound by that

I'm not disagreeing with any of the above comments made so far, but states may make laws that give extra free speech protections, right? Activists judges make laws when decided cases...I'm curious to know what kind of case law is out there as examples to see how the courts have actually ruled. I'm not a law student or a lawyer, so you guys may have better access to that stuff than I do.

 

[justalayman]

I'm not disagreeing with any of the above comments made so far, but states may make laws that give extra free speech protections, right? Activists judges make laws when decided cases...I'm curious to know what kind of case law is out there as examples to see how the courts have actually ruled. I'm not a law student or a lawyer, so you guys may have better access to that stuff than I do.

I'm not a law student nor a lawyer. You have the same access to anything that I do. You can start with Google Scholar. Look for court opinions.

but "extra free speech protections? What would that be? It's not a matter of making laws to protect speech. It's that the government cannot make laws limiting speech.

For example, may an employer legally censor and/or sanction an employee for comments the employee makes publicly, even if those comments are unrelated to said employer?

yes, they can and it happens often.

Presume that the employer is not a government agency or owned by a government body, but a private business publicly traded on a stock exchange.

and? they too can fire people for saying things when the employee is not at work.

You may also presume that the private business sells to the government, but that may not have any bearing whatsoever on this circumstance.

doesn't change a thing.



you have to realize that if the gov makes laws that restrict the company from doing as they choose, the gov is guilty attempting to control that business. That too is not allowed. You might be mistaking our government for the communist government of China. They do make laws such as you are suggesting, or really, any laws they want to make.

 

[gkisystems]

What about protection from discrimination? The protected class would be "creed" as defined by: Religious, moral or ethical beliefs about right and wrong that are sincerely held. Employer has “duty to accommodate.”

Could social media statements made on a particular topic as being either morally right or wrong be protected speech under the discrimination laws?

 

[TheGeekess]

I'm not a law student nor a lawyer. You have the same access to anything that I do. You can start with Google Scholar. Look for court opinions.

but "extra free speech protections? What would that be? It's not a matter of making laws to protect speech. It's that the government cannot make laws limiting speech.


yes, they can and it happens often.


and? they too can fire people for saying things when the employee is not at work.

doesn't change a thing.



you have to realize that if the gov makes laws that restrict the company from doing as they choose, the gov is guilty attempting to control that business. That too is not allowed. You might be mistaking our government for the communist government of China. They do make laws such as you are suggesting, or really, any laws they want to make.

It's not allowed? Then we'd better be calling up the FDA, the IRS and the EPA and tell them that their actions are NOT ALLOWED.

 

[Mass_Shyster]

I'm not disagreeing with any of the above comments made so far, but states may make laws that give extra free speech protections, right? Activists judges make laws when decided cases...I'm curious to know what kind of case law is out there as examples to see how the courts have actually ruled. I'm not a law student or a lawyer, so you guys may have better access to that stuff than I do.

Just for fun, I googled "law school first amendment syllabus". The first (or one of the first) hits is a syllabus from a First Amendment class from the University of Missouri. http://law2.umkc.edu/faculty/projects/ftrials/firstamendment/LIN_1STA.HTM

That should provide more information than you want to know. I don't know if it includes Snyder v Phelps or Citizens United which are both pretty recent cases. Snyder includes a good discussion on protected speech and Citizens United is the case that determined that corporations are persons entitled to first amendment protection and that campaign contributions are a form of protected speech.

 

[Mass_Shyster]

What about protection from discrimination? The protected class would be "creed" as defined by: Religious, moral or ethical beliefs about right and wrong that are sincerely held. Employer has “duty to accommodate.”

Could social media statements made on a particular topic as being either morally right or wrong be protected speech under the discrimination laws?

I'm not aware of any case that has made that determination. In order to argue it, you'll have to get fired and sue, and you get to be a test case. BTW, being a test case is an expensive hobby.

 

[commentator]

Well, cheer up. If you shoot off your mouth in a way your employer doesn't approve of, and they fire you, you'll be able to file for and more than likely be approved for unemployment insurance benefits. Because in order to keep you from receiving these government mandated insurance benefits, the employer would have to show that they had a valid WORK RELATED reason to terminate you. If you spouted off politically and it was on Channel 3, or if you were accused of molesting a child and it was on Channel 3, or if you had been arrested for something else you did in your off hours, and they fired you, it would not be considered a valid work related reason to terminate you, unless for example, you are required to carry firearms on the job and you can't do that now because of your off job behavior.

But you've got no protections under the first amendment from such a firing. People labor under the delusion that they've got a whole lot more rights and protections in the workplace than they actually do. Public sector workers have the Hatch Act related to politics. But good old private sector employers can and do frequently fire away if their employee isn't on the same political page with them.

 

[quincy]

Most disputes between employer and employee over the right of free expression in or outside the workplace will not result in lawsuits. The employee will either acquiesce to the demands made by the employer or be fired and, while there may be a brief but extensive period of press coverage over some of the firings, generally everyone accepts the fact that the employer had the right to fire the employee and everyone moves on.

There was a well-publicized incident several years ago involving employee Lynn Gobbell's bumper sticker in support of John Kerry, for instance, which resulted in her Bush-supporting employer insisting she either remove the bumper sticker from her car or lose her job. Her job was terminated. Her termination had a satisfactory ending in that John Kerry offered her a job with his campaign, not only matching her old salary but providing her with benefits which her old employer didn't. The employer was perfectly within his rights to fire Gobbell, however.

Right now in Michigan, there is a case involving discrimination scheduled for trial October 15 that is an interesting one. See Julea Ward v Wilbanks, et al, the 6th Circuit Court of Appeals decision accessible through the Alliance Defense Fund's website: http://www.adfmedia.org/files/WardAppellateDecision.pdf.

Although this is not an employer/employee discrimination suit as such, instead involving a graduate student at Eastern Michigan University who worked as a counselor as part of her counseling program studies, the 6th Circuit when hearing the case on appeal in January of this year touched on speech and religion in the workplace and Constitutional rights.

The Court said: ". . .the ban on discrimination against clients based on their religion (1) does not require a Muslim counselor to tell a Jewish client that his religious beliefs are correct if the conversation takes a turn in that direction and (2) does not require an atheist counselor to tell a person of faith that there is a God if the client is wrestling with faith-based issues. Tolerance is a two-way street."

Where the First Amendment will not often protect an employee when it comes to an employer's hiring and firing decisions, there are other laws that can work to protect free expression (and therefore a job), depending on what sort of expression is being freely expressed.



(cacoethes loquendi?)

 

[ecmst12]

While a case for wrongful termination could be made for an employee fired for simply talking about their religious beliefs outside of work, that does not mean you can take every status update you post on Facebook and claim it to be protected because of it's "moral" content. Religion is a protected characteristic, morality is not.

Political affiliation IS protected in a few states.

 

[cbg]

Political affiliation IS protected in a few states.

True. But not in the OP's

 

[justalayman]

It's not allowed? Then we'd better be calling up the FDA, the IRS and the EPA and tell them that their actions are NOT ALLOWED.

there is a difference.

 

[TheGeekess]

there is a difference.

Alrighty then.