Jottings By An Employer's Lawyer

Wednesday, October 24, 2007

Speechless by Bruce Barry - A Mini-review

Two relatively recent posts, one by Chris McKinney at HR Lawyer's Blog, Limits of Free Speech in the Workplace and Freedom of Speech in the Workplace: Think Again by Michael Moore at the Pennsylvania Employment Law Blog, reminded me how I had been meaning to mention an interesting book by Vanderbilt Professor Bruce Barry, Speechless: The Erosion of Free Expression in the American Workplace.

If Professor Barry has a law degree he has gone to great pains to hide it on his professional c.v. on his website, but nevertheless his book has one of the best explanations of state action as a pre-requisite for constitutional protection that I have seen. I only wish he had written it sooner, so I could have used it as a reference when I was testifying before a Texas House Committee several years ago and was taken to task for making the comment that in the private sector employees didn't have first amendment rights. In fact the Chair of the Committee asked where I went to law school with a sarcastic tone that indicated he didn't think much of my legal education. (Hopefully I didn't cost UT Law School anything in the way of appropriations that biennium.)

Professor Barry has a viewpoint, he is after all an academic and President of the board of directors of the American Civil Liberties Union of Tennessee, but I found his book quite balanced in its approach to the issue of free speech in the workplace. It is the type of thoughtful writing about a serious issue that one wishes many more current writers would aspire to emulate.

In addition to providing good insight into the current state of the law, he makes the argument that it would be good for society, including employers, if they could get over their basically reflexive anti-free speech reactions, while acknowledging there is little current legal basis to require them to do so, and conceding that freedom increases conflict which runs against employer's "enduring goals of employee compliance, conformity, complacency and efficiency." Perhaps a little too cynical view of modern employers.

If you wanted to quibble, and there certainly is no reason to, one might question the use of "erosion" in the sub-title, as it perhaps implies that at one time free speech rights in the workplace were more than they are now. I don't think that's right, nor does Professor Barry really attempt to make that point. A couple more examples of small flaws from my viewpoint --he buys into organized labor's argument that the NLRB's recent decisions on who are supervisors is some watershed moment, and in his critique of employment at will probably overstates the impact of Montana's statutory alteration of that standard. And there are other similar points where arguments could be raised.

But if you are at all interested in the workplace, and I assume you are or you wouldn't be reading this post, then this is a serious book that too deserves a place in your library.

Private sector employees have 1st amendment rights, but only against the government making their employer discipline them, not against the voluntary decisions of their private employer to discipline them.

In Korb v. Lehman, the Fourth Circuit recognized that although a private employer can fire an employee for his speech, a government official can't pressure the employer to do so.

In Truax v. Raich (1916), an equal protection cases, the Supreme Court observed that the fact that employment is at the will of the parties does not mean it is at the will of the government, which can be sued under the Constitution for pressuring a private employer to fire one of its employees.

Hans Bader
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