Sunday, June 24, 2007

Workers Have the Right To Remain Silent: A Podcast Interview With the ACLU's Bruce Barry

“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.”
So reads the First Amendment of the Bill of Rights. However, the Constitution does not prevent employers from encroaching upon the free speech of their employees. Even so, most Americans assume their right to free speech is protected in all aspects of their life – including their jobs. The reality is quite different.

A factory worker named Lynn Gobbell was fired in 2004 when her employer, a George Bush supporter, objected to her John Kerry bumper sticker. Edward Blum, a stockbroker with Paine Webber in Houston during the 1990s was fired because he actively opposed affirmative action on his own time. A flight attendant with Delta Airlines lost her job when the airline disapproved of her personal blog. Those are but a few examples cited by Bruce Barry, the author of Speechless: The Erosion of Free Expression In the American Workplace, published by Berrett-Kohler.

Barry utilizes case law and history to illustrate how freedom of speech has diminished for Americans at their jobs. A Professor of Management and Sociology at Vanderbilt University as well as president of American Civil Liberties Union of Tennessee, Barry contends the legal concept known as “at will” is perversely imbalanced in favor of employers. In his introduction Barry writes,
“Work is where most adults devote significant portions of their waking lives, and where many forge the personal ties with other adults through which they construct their civic selves. Yet work in America is a place where civil liberties, including but not limited to freedom of speech, are significantly constrained, even when the exercise of those liberties poses little or no threat to the genuine interests of the employer.”
As the 21st century progresses, a whole generation entering the workforce have public personalities from the Internet and blogs. Increasingly, ordinary citizens through online access are having their opinions published in editorials and websites that employers may find objectionable or potentially damaging to their business. Meanwhile, traditional free speech issues on the job remain such as union organizing and lifestyle discrimination.

Barry respects the desire of employers to maintain efficiency and preserve the profitability of their business. He also doesn’t believe employers are conspiring to undermine the First Amendment. Rather, Barry contends that American civil society could benefit from a conversation about the imbalance that currently exists in favor of employers. He further advocates that employers themselves would benefit from not reflexively terminating employees based upon speech.

Barry agreed to a podcast interview with me about his book and the issue of free speech in the workplace. Among the topics covered during our conversation were the different protections for public and private employees, his opposition to the "at will" doctrine and how free speech in the American workplace differs with our counterparts in other democracies. I also asked him about the specific risks to bloggers and what we can do to strengthen our rights.

Please refer to the media player below.

This interview can also be accessed via Itunes by searching for Intrepid Liberal Journal.
ADDENDUM: My thanks to Cernig for linking this post in today's blogroundup at Crooks and Liars. Cernig is doing the bloground up for C&L this week while Mike is away and also linked this post at their own fine blog, Newshoggers.


Anonymous said...

The interesting part of this interview for me concerned the perceived decrease in efficiency by employers when employees exercise free speech. I wonder what in our society has led employers to think this way. Perhaps the fact that politics is such a polarizing issue, particularly in America, leads employers to avoid it as much as possible. I hope that employers will sit down and think deeply about this view, however. I think when conducted correctly, and without an aim to create arguments, political speech is at best an extremely helpful tool to keep employees happy and working, and at worst, a completely neutral thing, with no affect on productivity.

That said, I keep my work and my political blogging life as seperate as possible, for fears of what my writing on my blog might do to my professional life. This is too bad, in my opinion.

Krackonis said...

Its very simple. There is an active movement of select individuals with goals of exclusion and segregation. The decendants of the Robber Baronies of the late 19th Century till the 30's.

I call them White Racists/Fascists, but you know who they are just by thinking a bit.

Anonymous said...

"Barry utilizes case law and history to illustrate how freedom of speech has diminished overtime for Americans at their jobs."

Although I haven't read the book yet, I fail to see what freedom of speech has to do with putting in extra hours at the office ;-)

Anonymous said...

The Rights Revolution is so OVER...We now go back to the Feudal Ages of Royal Families, Merchant Princes and serfs. See you workin the digital potato field real soom my friend.

Robert Ellman said...

Anonymous, by "overtime" I meant, over the course of time. It was inartfully written on my part and I've edited it accordingly.

Unknown said...

it's just like this Bong Hits For Jesus case SCOTUS ruled on... people in charge should butt out when the speech doesn't take place on work/school property, during those hours, etc.

Anonymous said...

Isn't the real question more about the rights of the employer? If I had a company I would want "my" kind of people working there.

A widget company is not a poliltical forum, it is a place to make widgets and profits for the owner and it is the owner's choice on their "team." If someone there doesn't fit their "yardstick" it is their right to let them go.

A person who is not a "team player" in an organization can cause a lot of unnecessary strife among the other workers, which is detrimental to production.

That's my nickle...


Anonymous said...

While the facts in the cases noted in the post are disturbing, they aren't 1st Amendment cases. There is no right to free speech in a private sector workplace. The first amendment only affects government action.

Anonymous said...

I had to send an employee home yesterday from my restaurant because he was swearing in front of customers. He claimed First Amendment rights to free speech, to which I told him that it did not apply in the workplace. I'm all for free speech, but you have to draw a line at work or you soon won't have any work for anyone, free speech or not.

Robert Ellman said...

Mr. or Ms. Anonymous -

Respectfully, my response to your comment is "no duh." Barry does not disupte an employer's right to dismiss an employee for speech harmful to their business. He does claim that employers should not infringe upon the speech or lifestyle choices of employees for what they say or do on their own time when it has no impact on that person's business. Not an unreasonable postion. I suggest you listen to the interview.

And to EJ

If you listen to the interview or read Barry's book, he's not looking to deny employers the right to have people that fit into their company culture. Indeed, what he is saying is that there is an imbalance regarding the employer's rights harmful to society that needs to be addressed.


The whole point is that free speech is not protected by the First Amendment on the job and too many people think it is. That's a big reason why Barry wrote the book in the first place. I don't necessarily agree with him on everything and I did ask contrarian questions. But you shouldn't just make surface assumptions about what he has to say. Barry himself writes extensively about "state action" regarding "public employees" and the limited rights for employees in the private sector.

Barry is advocating that employees should be allowed to engage and pursue civic activities on their time without risk of termination from their jobs.

Anonymous said...

I'm as liberal as the next left-wing nut, but as an employer I don't see the issue. The constitution protects us from laws abridging free-speech, not market driven ramifications to what we say. Surely what you do on your own time should be your own business, and I would never work for anyone who didn't agree with that. But we all have to make choices about where we work, just as employers make choices about who to hire and fire. The first amendment does not suggest that laws should be written to protect speech in specific places. The amendment is simply supposed to protect us from laws that restrict it. There's a big difference between losing your job because of something you said, and going to jail for saying it.

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