The Free Speech/Workplace Collision

Free Speech in the Workplace: An Uncomfortable Balance for Employers

Barry_3An erosion of free expression in the workplace is weakening the very fabric of civic discourse, a new book on the subject argues.

"There are excessive and needless restrictions on American employees," says Bruce Barry, author of Speechless: The Erosion of Free Expression in the American Workplace, "and that matters for civil society and democracy. If people are worried that their involvement in a community or cause or political campaign might affect their careers, then I argue this has a chilling effect on them in their role as citizens." Barry is a professor of sociology at Vanderbilt University. He also is on the faculty at Vanderbilt’s Owen Graduate School of Management, where he teaches in the Organization Studies program.

PHOTO: Bruce Barry, Professor of Sociology; Professor of Management (Organization Studies)

Increased concern with corporate and brand image, the changing nature of information technology, and diminishing job stability all contribute to the phenomenon, according to Barry. "It all adds up to a kind of perfect storm for limiting free expression on or off the job," he says.

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Analyzing expression-related firings, historical trends, and legislative and judicial developments, Speechless  examines the state of free speech in private and public employment, discusses its effect on workers and the wider society, and offers suggestions for reforming both law and management practice.

The book cites extreme examples, like an Alabama woman fired for having a John Kerry bumper sticker on her car, but also situations where the issues are more nuanced, as in the case of a Delta Airlines flight attendant whose blog included mildly racy photos of her in her flight uniform. "They do have a right to worry about preserving their brand image and think about how an employee's expressive behavior might affect them," he says of the airline case, "but it strikes me as an overreaction to consider that a firing offense."

The book is clear about the fact that the nature of a firing offense, when it is a matter for the law at all, varies from company to company, from state to state, and from courtroom to courtroom.           

"Like so much of the law on free speech and other civil liberties," Barry writes, "the outcomes of cases involving workplace expression often turn on interpretations of vague and shifting standards, balancing tests designed to weigh competing interests that are inherently subjective, and the ever-changing happenstance of a court's ideological composition at a given time."

Barry acknowledges that the First Amendment has precious little application in private settings, since it prohibits governmental, rather than private, restrictions on speech. Even so, he says, "I don't contend that there's a corporate conspiracy to shut down speech, but the law gives them that power, and conventional wisdom and accepted managerial practice gives them the instinct to shut down speech that's on the margins. The argument becomes, 'That's not related to business. Do it on your own time.'"

Employees are also operating in an era when job security and stability are low and union membership is dropping, phenomena Barry says increase "workplace docility and self-censorship."           

An engagingly written ("Free speech may be the heart of constitutional law, but it's apparently the appendix of employment law") look at the subject, the book is an outgrowth of Barry's "alarm" at firings and other consequences that can occur "without meaningful recourse for those whose speech is silenced, and without significant consequences for employers doing the silencing." Due process is as much a concern for Barry, president of the Tennessee state affiliate of the American Civil Liberties Union, as is free speech, since most workers in the U.S. are employed “at will,” meaning they can be fired for just about any reason or even for no reason.

Increasingly, the reason may relate to the ease with which once idle chatter can be distributed nationally or internationally. Technology including the internet allows and encourages the wide and speedy dissemination of everything from reasoned political discourse to ill-advised harassment or scatology. The same technology has given employers an unprecedented ability to monitor such communication, and because of employee use of company equipment in the workplace or at home, the lines between business and personal can become even more blurred.

Firings resulting from such speech are by no means widespread, Barry maintains, but he is wary of a scenario in which "freedom of speech...is something you do after work, on your own time, and even then (for many), only if your employer approves."

"Every time someone gets fired for blogging, or bumper stickers, or letters to the editor," he says, "I worry about its chilling effect, the message it sends that your speech can get you in trouble even when it's relatively harmless."           

Employee speech that is threatening or intimidating complicates the situation, and Barry acknowledges gray areas in balancing free speech and potential harassment.

"My book is not a call for turning workplaces into unregulated free speech zones," he says. "Of course employers need not tolerate abusive or harsh or insulting speech. The problem I see is that employment lawyers tell managers to go too far, to avoid any risk of any lawsuits by allowing no speech that could be construed by someone as harassing, and that creates a collision between harassment laws that seek to avoid inflicting a hostile environment, and free speech. It's a tough balance and I don't claim to have an answer for all situations, but I will argue that, on the advice of lawyers, many employers tolerate too little speech."           

Barry’s suggestions fall into two categories. The first recognizes that state laws vary enough that employment protections readily available in one are minimal or nonexistent in another—the Alabama woman with the Kerry bumper sticker would have had legal recourse in some other states —and urges a move toward standardization. "I wish that states with less protection would adopt the laws of th