Free Speech and Employment
Social Media Is Creating A Nationwide Mill Town
In the early days of U.S manufacturing, so-called “mill towns” popped up, drawing people from the countryside and farming to the industries of mass production. Oftentimes the corporations who ran these towns provided housing to people; the entire town was under the ownership and governance of the private corporation. But the employee’s conduct, both public and private, was highly controlled and if any employee stepped out of line, they were immediately evicted from the corporate premises. Which brings me naturally to Curt Schilling.
ESPN corporation had every right and privilege to fire Curt Schilling. Schilling posted an anti-transgender bathroom choice law meme on his personal Facebook page. The result was the now commonplace internet outrage calling for Schilling’s ouster over an issue that people became aware of yesterday. ESPN promptly dismissed him, citing their values as an “inclusive” employer. Such is life. It is also one in a string of cases in recent memory where businesses have terminated an employee, or even a CEO, over their private views. I am not defending Schilling nor advocating for ESPN here. But is this how it should work generally? The Schilling kerfuffle prompts the discussion as to how far this interaction between social media, free speech and employment should be taken. As the world becomes ever more interconnected with social media, the implications of our legal structure could squash a culture of free speech in America.
The United States’ basic legal relationship in employment is governed by a concept known as “employment at will.” That is, one can be fired/terminated/canned/asked-to-no-longer-work-here-and-here-is-a-box-for-your-things- for any reason- good, bad or none whatsoever- at any given moment. The free market reigns! In this legal paradigm, employment is not a vested property right of any kind as it would be in a “just cause” jurisdiction (or under collective bargaining agreement). Now, there are a number of exceptions to the employment at will rule both by common law and by statute such that entire generations of employment lawyers have been kept well fed. More on that a bit later. Suffice it to say, an employer can fire you for comments made on Facebook, Twitter, pictures on Instagram, or column on Medium.com fairly freely.
“This is as it should be,” a dedicated free marketer, whether conservative or libertarian, might say. “An employer is private and the intrusion onto that property should be limited to those few necessary circumstances that fall within the purview of the interstate commerce clause.” Well, we are a little late to that battle as anyone who walks past the bulletin board of OSHA, Title VII, NLRA, FLSA posters at the workplace can tell you. It doesn’t mean the principle isn’t otherwise correct, as far as it goes, but the government intervenes in the workplace for far less — including speech within the employment relationship. And everyone thinks they are simply making a free choice bargain when they work for their employer and that relationship decision is mutual. Until your neighbor is displeased by your Facebook post, or even a stranger across the country, and decides to make an example out of you, beginning first with your livelihood. Who is driving the choice then? The mob that does not approve of your opinion. (And somewhat relatedly, query whether an employer may require that you not vote or vote in certain ways as part of the employment bargain.)
This isn’t a true employment market. Or, it is a market, but it is one in which the employer has almost no incentive not to incorporate the demands of the mob into its employment decisions. It has nothing to do with the company’s ability to afford you, the economic outlook, your skills and abilities or performance. No, it’s simply that you have come under the pointy end of the internet mob’s spear. Corporation management tends to lean left of center culturally as it is, save for a few notable exceptions. But beyond that, they do not want trouble. And in the Age of Social Media, trouble can find you fairly easily. The employer can either make a brave stand for principled free speech in the face of negative news reports and an online mob, or it can make the cost-effective decision to simply let the employee go. Problem solved. Unfortunately, this has the tendency to chill private speech, unrelated to employment, in a nation where 51% of the workers are employed by a corporation with more than 500 employees.
Speech is already somewhat regulated — both positively and negatively — in the employment context. There are Whistleblower laws, both state and federal, which protect speech in certain public policy areas. There are Title VII laws which impute liability to an employer that fails to protect employees from certain speech that affects protected characteristics in a manner that is “severe and pervasive.” (Anyone who has sat through an HR orientation video on Sexual Harassment can attest to that.) Your speech in advocating for working conditions when made on behalf of coworkers is also protected as a “concerted activity” under the National Labor Relations Act. Your speech within the EEO complaint realm is also protected as an employer may not engage in retribution for your activity in that area either. Political affiliation, another first amendment right, is also protected in a few states (conservatives should trumpet these sorts of laws as well if we wish to survive.) These are just a few examples. But what of free speech in the private sphere generally?
Intervention Is Needed
If we are to preserve the private sphere of speech, government intervention is needed. Government secures rights and the right to free speech is one of our nation’s central values. “But whoa whoa, free speech protection only pertains to government censorship and restriction.” That is so, but the idea of free speech is broader. It is a culture that allows for disagreement, even on sensitive topics, without enacting punitive measures. But currently the culture is one that does not respect that at all, one where the first move is to the electronic pitchforks of social media before an employer’s doorstep. But attaching liability to an unjust termination for private speech would be consistent with such a framework as market incentives here are moving towards speech suppression. And if some form of liability were to be imputed by a law protecting employees’ private speech — it would at least account for the externalities caused by an employer caving to the Speech Mobs. It would also give employers at least a fig leaf of protection as well, as they could point to the law indicating that action could be unallowable thus, it would be hoped, deterring the mob.
We are not talking about speech within the employment context here — anything that has a nexus to your employment would not be covered (and also likely the subject of litigation that courts could determine the boundaries for). E.g., Curt Schilling was a public media figure and likely all of his comments, whether private or not, were part of his position as a media personality for ESPN. Nor are we talking about people privately shunning people and condemning them in any other number of private means by which people who hold unpopular views are treated in society.
Getting fired for your private speech is not a small event. Some studies show that unemployment is worse than death or divorce on the toll it takes on individuals. The harm of the mob’s outrage thus falls on the individuals and the company bears no risk whatsoever. Accountants, PR people, line employees — all are expendable in the face of a very costly negative press campaign fueled by social media outrage. The choice for an employer is easy regardless of whether the mob is justified or not. c.f. #HasJustineLandedYet . And the choice for the next employer is even easier after they perform a Google search for your name. These choices collectively harm a society whose members would continue to shrink from public debate. I recognize too that this would potentially protect some egregious forms of speech, but the employer would still have to make the calculation as to whether it is egregious enough to cost in the liability to the decision to terminate.
Imputing some form of liability to employers, whether through increased unemployment payments or ranging to punitive forms of liability, could all be on the table state by state. Or, given the state of federal law on interstate commerce, a federal law accomplishing the same could be enacted as well. Regardless, conservatives need to consider whether the value of allowing employers to dispose of their employees in the manner they see fit outweighs the collective damage done to a shrinking sphere of private speech. And one which seems to be shrinking only for conservatives’ more traditional views. The marketplace of ideas is thusly contracting with no signs of an upturn.
We are witnessing something of the tragedy of the commons as it applies to private speech; a common space that is being encroached upon by various interests. We can intervene now to protect a culture of speech or we can entrust our livelihood to the internet mob’s need for an outrage fix. And the next time you choose to weigh in from the comfort of your living room on the topic du jour on Facebook, you should open a browser tab for a job search as well. Just in case.
As conservatives, we often defend free speech of even those we disagree with in the spirit of Voltaire. But when that value conflicts with employer rights, we tend to defer to the choices of free enterprise. There is a cost either way. The question is: Who will pay for it? We can at least argue about that much for the time being without risking being thrown out into the street.
-Submitted pseudonymously
