Free speech

Does the First Amendment Protect Employees Who “Take a Knee”?

Robert C. Lockwood
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Does the First Amendment Provide Protection to Employees in the Private Sector?

I was just driving back to work from lunch and listening to a popular sports talk radio program.  The host of that show was addressing the recent issues that have arisen when professional athletes have protested during the national anthem.  As part of the discussion, the host quoted extensively from a recent opinion piece by Stan Van Gundy, the coach of the NBA’s Detroit Pistons:  “Athletes Who Protest Are Patriots”  In particular, part of Mr. Van Gundy’s argument relies upon the First Amendment to the United States Constitution:

Honoring America has to mean much, much more than standing at attention for a song (one which, by the way, contains racist language in later verses). One of the most important freedoms that our military has fought for over two-plus centuries is the freedom of speech. When these professional athletes protest during the anthem, they are exercising one of the very freedoms for which our military men and women fought so valiantly, thus honoring our highest values and, in turn, those who have fought for them.

Please read the entire article.  Mr. Van Gundy makes substantial arguments regarding the message that these professional athletes are attempting to convey.

I am not taking a favorable or unfavorable position with regard to these protests.  Both sides are passionate about their viewpoint, and I appreciate both sides.  But, as a lawyer who practices employment law and regularly defends governmental entities accused of violating the constitution, the continued references to “Free Speech” just bother me.

In the vast majority of circumstances, the First Amendment to the United States Constitution does not provide protection to employees in the private sector.  The First Amendment provides that “Congress shall make no law … abridging the freedom of speech ….”  The key word here is “Congress.”  Statutes and case law have extended the term “Congress” to most governmental entities.  But, private employers (including the NFL) are not governmental entities and they are not required to comply with the First Amendment.  I made this point in my very first blog post, when I noted that you can fire an employee who keeps yelling “Roll Tide” in the office.  As a result, employees who protest in a private workplace run the risk of termination or other adverse consequences as a result of their protests.

I  haven’t reviewed the collective bargaining agreement between the NFL Players Association and the NFL.  Similarly, I don’t have access to any NFL player’s employment contract.  It’s possible that those documents, or  some other source of legal rights, protects these players’ ability to protest.  But, the First Amendment’s right to Free Speech does not provide them with legal support.

Charlottesville: Terminating Neo-Nazi Employees

Robert C. Lockwood
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In most circumstances, it is permissible for an employer to terminate an employee based upon disruptive political views.

John Heyman at Workforce Magazine just wrote a great article on legal issues arising from termination of employees with repugnant political views:  When You Discover That You Employ a Nazi  In short, Mr. Heyman endorses an employer’s right to terminate employees with Neo-Nazi beliefs.

Mr. Heyman’s analysis applies equally-well in Alabama.  As I’ve written on numerous occasions, employees in Alabama possess very few legal rights, because Alabama is an “employment-at-will” state.  This means that an employee, who does not possess a written employment contract, can be fired for a good reason, a bad reason, or no reason at all.  Of course, federal law can overrule Alabama’s general employment-at-will rule.  As a result, employers in Alabama cannot terminate employees who are protected by a federal law.  Thus, many forms of discrimination are prohibited in Alabama, because they are barred by federal laws like Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

Mr. Heyman’s article notes that employees expressing political views on their own time may receive protection from the National Labor Relations Board.  So, there may be some circumstances when employers in Alabama would be ill-advised to terminate employees based upon their political beliefs.  Also, governmental-employers face additional obstacles.  The First Amendment to the United States Constitution protects freedom of speech.  But, the First Amendment only protects citizens from invasion of their rights by government.  In most cases, private employers are not required to give employees free speech rights.  But, the First Amendment generally prohibits governmental employers for terminating employees based upon their political viewpoints.

CAN I FIRE MY EMPLOYEE WHO KEEPS YELLING “ROLL TIDE” AT THE OFFICE?  FREEDOM OF SPEECH RIGHTS IN THE WORKPLACE

Robert C. Lockwood
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Auburn fans are just tired of it.  All they hear about is The Process.  “Nick Saban and Bear Bryant are the best coaches in the history of the universe.”  “Roll Tide!!!”

If I fire an employee who yells “Roll Tide,” am I violating his First Amendment Freedom of Speech rights?  For private employers, the legalistic answer to this question is “No.”  As discussed below, however, there is a lot of employee speech that is protected.

The United States Constitution and its amendments bestow rights on citizens with regard to their interaction with government.  As a result, the First Amendment guarantees that government will not restrict any citizen’s right to freedom of speech.  But, private employers are not the government.  As a result, from a pure constitutional law perspective, private employers are not controlled by the First Amendment.  Thus, in most circumstances, a private employer cannot violate an employee’s free speech rights.

In a private office, if my staff is composed of Auburn fans, and I am an Alabama fan, I can fire them for saying “War Eagle” in the workplace.

But, there are always exceptions to the general rule.  While the First Amendment does not protect employee speech in the private workplace, there are plenty of laws that do provide protection for employee speech.  Virtually every federal employment law protects employees who speak out against discrimination in the workplace.  The NLRB and Executive Orders from the President protect employees who speak out about working conditions — particularly employees who talk to each other about wages.

Unfortunately for college football fans, there is no law which protects employees who scream “Roll Tide” or “War Eagle” at work.  But, if your employees are making other statements that may be upsetting to you, be careful before taking action.