Limiting Free Speech (28): Free Speech at Work

Should people be allowed to enjoy an unlimited right to free speech at work, and be able to ask courts to undo measures (such as sacking or disciplinary measures) which their employer has taken against them as a result of their speech? Or do corporations and government agencies have a right to take measures against employees engaging in certain types of speech, a right which therefore trumps the right to speech? And is there a difference between the rights of corporations and the rights of (certain) government agencies?

I could make this brief, and say that employees are citizens like all other citizens, and should have a right to free speech. I could say that, if there are any possible and acceptable (or necessary) limitations on the right to free speech, they have nothing to do with the fact that those engaging in speech act as employees or as citizens. I could say that the place where people speak – at work or elsewhere – doesn’t change anything.

Unfortunately, I can’t. The place where speech takes place does matter, as I have mentioned already in the case of hate speech (hate speech in front of an angry mob gathered at the house of a pedophile is different from the exact same speech written down in a book almost no one reads).

As I will argue, the same is true in the current case. Speech at work may be treated in another way than speech elsewhere. There are some good reasons to impose stricter limits on speech at work than on speech in general. Employers therefore also have the right to take certain measures against employees engaging in speech which may be restricted (in fact, these measures are the restrictions). Also, certain government agencies can impose more and wider restrictions than private corporations. All these restrictions on the freedom of speech are possible because they are necessary for the protection of other rights or the rights of others (I try to make this a general rule when discussing restrictions on human rights, see here).

But before I argue this, I want to sketch the baseline first. Free speech is very important, and I don’t think there are many people who believe this more than me (as any regular reader of this blog knows). As government agencies, but also private corporations, regularly violate human rights, free speech at work is perhaps even more important than free speech in general. People working for agencies or corporations engaged in rights violations, must have the right (and the possibility) to denounce these practices. So, if I argue for the right of corporations and agencies to restrict, in certain cases, the right to free speech of their employees, I have to be careful to do so without jeopardizing the important rights of whistleblowers.

The U.S. Supreme Court, which allows government agencies to limit the freedom of speech of their employees, also acknowledges the importance of whistleblowers. When the speech in question is of “public concern”,* the Court uses a higher threshold to uphold speech-related disciplinary measures against employees. (The Court uses the so-called Pickering test). (However, the Supreme Court is still oddly restrictive in this respect. Whereas, normally, free speech is considered to be very important by the Court, in case of speech at work, “public concern” is not enough to uphold the right to speech. It’s just a first threshold to be passed for the Court to asses the possibility of reviewing disciplinary action. When there is no “public concern”, there’s no right to free speech at work according to SCOTUS!).

Now, when and why should the rights of corporations and government agencies to sanction their employees for acts of speech, take precedence over the right to free speech of these employees? Corporations and agencies have a right to function without disruption. A government agency even has a duty to function without disruption, because it serves the public interest. And this interest more often than not includes certain human rights. For example, a government hospital has a duty to protect the healthcare rights of citizens. If speech acts at the hospital disrupt its normal functioning, the rights of citizens may be put at risk. If, in addition, these speech acts don’t have anything to do with the functioning or organization of the hospital, it is difficult to see why they should be more important than the rights of patients. However, if the speech acts uncover serious incompetence at the hospital, the disruption that follows these acts may be a price that is worth paying.

Regarding corporations, the burden of proof on those wishing to impose restrictions on speech at work, is heavier. Corporations usually don’t work for the protection of human rights of citizens, and therefore cannot put these rights in the balance. However, corporations are the property of certain citizens, and these citizens have a right to use this property. Speech acts in corporations can result in disturbances of a kind that makes this use of property difficult or impossible. If, in addition, these speech acts don’t serve any public purpose or address a public concern, it may be justified to consider the right to property more important than the right to speech, in certain cases. For example, should we really accept and protect flag burning during office hours and in office buildings? And who would take sides with an employee wasting huge amounts of company time on frivolous speech?

And there’s another problem with judicial protection of speech at work. Employees may claim that disciplinary measures taken against them (including dismissal) were based on their speech acts, whereas in reality these measures were based on a lack of performance. Employers may become unwilling to take such measures because of the risk of costly litigation. Outspoken but incompetent employees will then be privileged, and others discriminated. Another result: the employer’s authority and ability to organize and lead are put at risk if many of her decisions can be reversed by judges.

* This “public concern” usually means that the speech in question should have something to do with the preferable manner of operating the agency, or should contain information which is vital to proper decision-making. Both definitions of “public concern” cover the activities of whistle-blowers.

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