The Business of Free Speech

Owen Bick
Owen Bick
Nov 28, 2017 · 9 min read

The United States of America is known for its respect for freedom of speech. Freedom of speech is at its core and is vital to protect your rights as an American against the government. “Freedom of speech is the right to articulate one’s opinions and ideas without fear of government retaliation or censorship, or societal sanction” (Yale). As of late, corporations in the United States have been under criticism due to their stances against professional sports athletes standing for the national anthem and employees protesting against the current President of the United States, Donald Trump. That bears the question: should corporations have the right to terminate someone’s employment due to their American right to freedom of speech?

Let’s use the first argument against employees not standing for the national anthem: it’s disrespectful for veterans; those who have died and served for the flag. But why are, for example, professional sports athletes kneeling for the anthem in the first place? There couldn’t possibly be some other underlying reason why African Americans would want to protest against a country’s anthem!

The uproar began on February 26, 2012, in Sanford, Florida when George Zimmerman fatally shot Trayvon Martin, a 17-year old unarmed African American high school student (The Orlando Sentinel). Zimmerman, a 28-year old mixed-race Hispanic man, was a neighborhood watch coordinator for his gated community, The Retreat at Twin Lakes. He noticed Trayvon Martin and thought he was acting suspicious and called the police. Police were taking longer than wanted and, against orders from the police operator, pursued Martin to the home Martin was in and fought him. During the scuffle, he killed Trayvon Martin (CBS Atlanta). To be fair, the neighborhood had a string of robberies beforehand. However, because Trayvon Martin was black, Zimmerman automatically assumed he was guilty of something and pursued him instead of waiting for police to arrive. After a lengthy trial, Zimmerman was found not guilty and wouldn’t face any legal repercussions for the murder of Trayvon Martin (The Wall Street Journal).

The acquitting of George Zimmerman began the racial war in America. After this event, we started to see police brutality stories on the news about police killing unarmed black people and harassing them. The first notable case of police brutality was the murder of Eric Garner. Police were approaching garner for illegally selling loose cigarettes. NYPD Officer Daniel Pantaleo began using a chokehold on Garner. A bystander’s video shows Garner saying eleven times “I can’t breathe” until he died. A grand jury failed to indict Officer Pantaleo.

Another example of police brutality would be the shooting of Philando Castile. Castile was pulled over for having a broken tail light. Before anything began, Castile alerted the officer that he was a licensed gun carrier and had a gun in the vehicle. When Castile went to get his ID for the officer, Officer Jeronimo Yanez shot Castile. The entire altercation was being streamed on Facebook Live.

These situations are examples of brutality that has happened in the United States in less than ten years. Personally, I have been in cases like the last one where I was in the car with a white gun owner who had alerted the officer he had a weapon in the car. He too grabbed his license. The difference? He wasn’t shot and killed for it. We have dealt with the development of groups such as Black Lives Matter who will protest against these shootings and will look for justice for racial profiling.

Back to the topic about professional sports athletes protesting the national anthem. Their primary motives for opposing it is police brutality and racial inequality in the United States (Slate). But why during sports games? It brings attention to the matter. I’ve seen a lot of people argue against the protesting as disrespectful to the American veterans who have served and died for the country. My central question to that response is: how? The athletes protesting aren’t protesting against veterans at all. They are opposing the state that the anthem stands for, not people who died for it. If they were protesting against veterans, they’d be vocal about it. You can still love something while calling it out on its issues. You don’t love your kids any less because you tell them they’re doing something wrong, are you?

That bears another question: why during their place of work? Why couldn’t they go out of their way another time and protest against the racial tensions in America? Protesting during an NFL game gets a lot more attention than a protest on the side. In 2016, the NFL drew in an average of 16.5 million viewers per game (ESPN). Let’s be honest with ourselves here, if they protested on the side, even if it was covered by CNN (which receives an average of 240k viewers per day (CNN)), it wouldn’t have anywhere near the media attention. In fact, I most likely wouldn’t even be writing this.

The current President of the United States, Donald Trump, has been very vocal against the NFL players protesting against the national anthem. Trump tweeted: “Two dozen NFL players continue to kneel during the National Anthem, showing total disrespect to our Flag & Country. No leadership in NFL!” (USAToday). Even though trying to influence a private entity’s decisions break 18 U.S. Code § 227 (Cornell), we’ll ignore that for now. Not only has protesting against Donald Trump and his administration become almost standard practice, a woman recently got fired for flipping off Trump’s motorcade (The Washington Post). That leads to the question I’ve been edging towards so far: should employers have the right to fire employees for protesting in the workplace?

As famously said by Oli­ver Wendell Holmes, Jr.: “An employee may have a constitutional right to talk politics, but he has no constitutional right to be employed” (Yale). In other words: to keep your job, you often can’t say what you like. Why is that the case when it comes to freedom of speech? Sure, you have the right to say whatever you want in this country, but does that mean employers should have the right to infringe on that and censor people?

The First Amendment of the United States states “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” (FindLaw). In other words, you can say whatever you want about the government (as long as it can’t cause physical harm) and the government can’t do anything about it. You can even burn the flag as proven by the United States Supreme Court in Texas v. Johnson (1989) and reaffirmed in U.S. v. Eichman (1990), has ruled that due to the First Amendment to the United States Constitution, it is unconstitutional for a government to prohibit the desecration of a flag, due to its status as “symbolic speech” (Justia).

Unfortunately, the Constitution doesn’t prohibit private entities from censoring employees and people associated with the body. Though there isn’t one form of document against the prohibition of free speech in the workplace, there are some laws that protect employees in some justifications of free speech. For example, discussing unionizing in the workplace and protesting against your employer trying to unionize is legal, and your employer cannot terminate your employment for attempting to unionize (National Labor Relations Board).

To be fair, I can understand why a company would want to censor people. For example, they might not want to be associated with a group of people that represent something that is against what the company stands for. Currently, on YouTube, there are a string of demonetizations happening because corporations are deeming content to be inappropriate and don’t want to associate with the content. However, that shouldn’t give employers the right to terminate employment for political beliefs, especially when they aren’t on the clock. If you’re at your place of employment and are currently representing them during your hours of work, the employer should have the right to censor you. You’re being paid by them to follow the rules. However, like the woman who was fired for flipping off Trump’s motorcade, you shouldn’t be fired when you’re not working for voicing your political opinion.

Currently, there are no federal laws protecting employees from getting fired due to political beliefs and positions. However, Retaliation by private employers based on race, color, sex, religion, national origin, age, and disability is prohibited (WorkplaceFairness). While religion can influence political positions on topics, religion is seen as cultural and shouldn’t be infringed upon, regardless if it does give someone a different moral compass. You can also argue that political opinions are a topic of someone’s culture as well. Primarily, people who grow up in strict religious households with conservative parents will adapt conservative political beliefs while people who grow up in a city environment tend to have more liberal ideologies. Does this put political beliefs on the same level as religion? Personally, I grew up in a neutral household and adapted socially liberal and fiscally conservative views as I got older. Should I be fired for having those opinions if I express them outside of the workplace? No.

Some states do prohibit employers from terminating employment based on “legal conduct outside of work.” Those states are Colorado, North Dakota, and Utah. Connecticut prohibits states from firing employees for anything that is applied under the First Amendment. New York prohibits termination for “recreational activities.” New Mexico flat-out prohibits employers from firing employees for political opinions. Washington D.C., Utah, Iowa, Louisiana, Puerto Rico, Virgin Islands, Broward County (Florida) and Urbana (Illinois) (WorkplaceFairness). These laws mostly protect people from their employers as long the acts are done outside the workplace and not during work hours. If you are creating political arguments during work and are an absolute nuisance, I have no sympathy for you when you’re promoted to customer.

As someone who is fiscally conservative (in other words I love capitalism), I would not let an employee express political opinions heavily in the workplace. Unless this employee’s political beliefs are hurtful, racist, sexist, or are complete hate speech, I am not going to bash their outside-of-work political activities. Until it harms the company, there is no reason that an employee should be fired. Instead of censoring people for flipping off a car that the president is in, let’s think about why that person could’ve been doing that. Instead of shunning and trying to shush sports athletes for protesting against a power struggle in the country they live in. Sure, they make millions of dollars because they have the privilege to live in a country that has corporations that can support that. As for the millions of Americans that aren’t NFL players, that isn’t the case. If the people with more of a voice and power didn’t speak up against issues, nothing would be solved. It isn’t up to politicians to voice opinions on issues; it is up to celebrities and everyday people to do that as well. If it gets people talking enough, people will pay attention and things will get done to solve the problem. In the 1990s when people were scared that video games harm children, it was spoken about enough to get Congress involved. Same goes for police brutality and the American political divide.

Citations:

“Yale Journal of Law & the Humanities.” “Speech, Truth, and Freedom” by Irene M. Ten Cate, Yale University, digitalcommons.law.yale.edu/yjlh/vol22/iss1/2/.

Prieto, Bianca. “Trayvon Martin Shooting Death Sanford: Baltimore Evangelist to Rally in Sanford for Justice in Trayvon Martin’s Fatal Shooting.” The Orlando Sentinel, 15 Mar. 2012, articles.orlandosentinel.com/2012–03–14/news/os-trayvon-martin-shooting-death-rally-20120314_1_shooting-death-bryant-chief-bill-lee.

“WAOK Wants To Know: Should George Zimmerman Be Arrested For The Killing Of Trayvon Martin?” CBS Atlanta, 19 Mar. 2012, atlanta.cbslocal.com/2012/03/19/waok-wants-to-know-should-george-zimmerman-be-arrested-for-the-killing-of-trayvon-martin/.

Campo-Flores, Arian. “Jury Acquits Zimmerman of All Charges.” The Wall Street Journal, Dow Jones & Company, 14 July 2013, www.wsj.com/articles/SB10001424127887324879504578603562762064502.

Stern, Mark Joseph. “Ruth Bader Ginsburg’s Kaepernick Comments Spell the End of the Notorious RBG Myth.” Slate Magazine, 11 Oct. 2016, www.slate.com/articles/news_and_politics/jurisprudence/2016/10/ruth_bader_ginsburg_s_kaepernick_comments_end_the_notorious_rbg_myth.html.

Rovell, Darren. “NFL TV Viewership Dropped an Average of 8 Percent This Season.” ESPN, ESPN Internet Ventures, 5 Jan. 2017, www.espn.com/nfl/story/_/id/18412873/nfl-tv-viewership-drops-average-8-percent-season.

“CNN Beats MSNBC For 40th Straight Month.” CNN, Cable News Network, 31 Oct. 2017, cnnpressroom.blogs.cnn.com/2017/10/31/cnn-beats-msnbc-for-40th-straight-month-in-ocotber/.

Poell, Nicole. “Donald Trump Blasts NFL Leadership with Tweet over Continued Player Protests.” USA Today, Gannett Satellite Information Network, 23 Oct. 2017, www.usatoday.com/story/sports/nfl/2017/10/23/donald-trump-blasts-nfl-leadership-tweet-over-continued-player-protests-anthem/789781001/.

“18 U.S. Code § 227 — Wrongfully Influencing a Private Entity’s Employment Decisions by a Member of Congress or an Officer or Employee of the Legislative or Executive Branch.”LII / Legal Information Institute, www.law.cornell.edu/uscode/text/18/227.

Dvorak, Petula. “Perspective | She Flipped off President Trump — and Got Fired from Her Government Contracting Job.” The Washington Post, WP Company, 6 Nov. 2017, www.washingtonpost.com/local/she-flipped-off-president-trump--and-got-fired-from-her-government-contracting-job/2017/11/06/4cf1af9a-c2da-11e7-84bc-5e285c7f4512_story.html?utm_term=.61ff7c38d92d.

“Texas v. Johnson, 491 U.S. 397 (1989).” Justia Law, supreme.justia.com/cases/federal/us/491/397/.

“NLRB.gov.” Your Rights during Union Organizing | NLRB, www.nlrb.gov/rights-we-protect/whats-law/employees/i-am-not-represented-union/your-rights-during-union-organizing.

Midwest New Media, LLC — http://www.midwestnewmedia.com — (513) 742–9150. “Workplace Fairness.” Retaliation — Political Activity, //Www.workplacefairness.org, www.workplacefairness.org/retaliation-political-activity#1.

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