Freedom of Speech in USA for
Employees of Private Companies
Copyright 2000 by Ronald B. Standler
Table of Contents
Introduction
Overview of Law
Korb case
Novosel case
Conclusion
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Professional Ethics & Wrongful Discharge
Introduction
In my essay on Academic Freedom in the USA,
I argued that the legal concept of academic freedom in the USA
was mostly an illusion. The second essay in this series, on
Freedom of Speech of Government Employees,
discussed U.S. Supreme Court opinions on the right of government employees
to criticize their employer
under the First Amendment to the U.S. Constitution,
then examined how lower courts have applied the holdings
of these Supreme Court cases to situations involving university professors
at state colleges.
The third essay in this series,
Professional Ethics & Wrongful Discharge,
reviews cases under state law involving wrongful termination
of employment, because an employee chose to follow ethical
principles of the employee's profession. Such terminations could
implicate freedom of speech, although "professional autonomy" might
be a better label for the concept.
This essay discusses the essentially nonexistent legal rights to
freedom of speech of employees of for-profit and non-profit organizations.
This essay is intended only to present general information about
an interesting topic in law and is not legal advice for your
specific problem. See my disclaimer.
Overview of Law
The First Amendment to the U.S. Constitution establishes freedom of speech
in the USA. There are several major limitations on this freedom:
- Only the government is prohibited from restricting speech.
Private corporations are free to censor speech of their employees.
- Freedom of speech is not absolute, even when government
regulation or law is concerned. For example, freedom of speech
does not give one the right to commit perjury.
See the beginning of my essay on
infotorts for more examples.
- Since 1977, the U.S. Supreme Court has retreated from protecting
freedom of speech even for government employees, as explained in
my separate essay.
Fundamentally, an at-will employee in the USA can be terminated at any time,
and for any reason – or no reason at all –
and the courts will not intervene to protect the ex-employee
from allegedly unfair treatment by the employer.
Courts have repeatedly recognized that "any reason"
includes a "morally wrong" or "morally reprehensible" reason.
I have briefly discussed the history of at-will
employment in the USA and criticism of this doctrine in a separate essay.
The combination of:
- no legal protection for freedom of speech of employees of
for-profit and non-profit corporations
and other non-governmental employers, and
- the freedom of employers to terminate employment at any time,
for any reason
means that employees in private industry have no legal rights to
freedom of speech.
Korb case
In June 2000, while reading cases on wrongful discharge of learned professionals,
I encountered an intriguing case involving Raytheon, a large corporation
that builds equipment for the U.S. military, and, Korb, who
Raytheon briefly employed as the vice-president of its Washington, DC office.
Korb was a former assistant secretary of defense (1981-85), so he had a
high profile among Congressmen and people in the Department of Defense,
with whom he routinely worked on Raytheon's behalf.
The Massachusetts Supreme Court summarized the facts of this case:
- In December, 1985, with Raytheon's permission, Korb joined the executive board
of the Committee for National Security (CNS), a nonprofit organization
dedicated to informing the public about issues of national security and the
prevention of nuclear war. On February 25, 1986, CNS held a press conference
in a Senate office building during Korb's normal lunch hour in connection with
the release of its annual alternative defense budget. Korb spoke at the press
conference. An article in the Washington Post newspaper the day after the
press conference reported on the event. The article described Korb as a former
assistant secretary of defense "[n]ow a private citizen working for arms maker
Raytheon Co." It stated that at the press conference, Korb was critical of
increased defense spending and urged a scaling back of the 600 ship, fifteen
carrier group Navy supported by the Secretary of the Navy.
As a result of the article, two Navy officials and a staff member of the
Senate Armed Services Committee telephoned Raytheon officials to express their
disapproval of Korb's reported remarks. Air Force officials also complained to
Raytheon. Korb was immediately summoned to Raytheon's headquarters in
Lexington, Massachusetts, and informed that his job was in jeopardy. Korb
agreed to write a letter to the editor of the Washington Post clarifying his
statements. The Washington Post published the letter on March 4, 1986, under
the heading, "We Need More Money for Defense."
Nevertheless, on March 12, 1986, Raytheon officials told Korb that he
would be terminated from his position as vice president for Washington
operations effective March 31 because of the Navy, Air Force, and Armed
Services Committee objections.
- Korb v. Raytheon, 574 N.E.2d 370, 371 (Mass. 1991).
As a direct result of Korb's statements, Raytheon promptly terminated Korb's
employment as a lobbyist in Washington, DC.
Korb sued Raytheon in a Massachusetts state court for wrongful termination,
citing both the Massachusetts state civil rights statute and the
First Amendment to the U.S. Constitution.
Raytheon removed the case to Federal District Court in Boston.
Korb then amended his complaint to delete all references to the U.S. Constitution.
The Federal District Court sent the case back to
the Massachusetts state court, because there was no federal question.
Korb v. Raytheon, 707 F.Supp. 63 (D.Mass. 1989).
The Massachusetts state court granted Raytheon's motion for summary judgment.
Korb appealed and the Massachusetts Supreme
Court, on its own motion, heard the appeal directly.
Korb, 574 N.E.2d at 371-372.
The Massachusetts Supreme Court affirmed the summary judgment:
- Korb characterizes the public policy at issue too broadly. His situation is
not that of an employee who is fired for speaking out on issues in which his
employer has no interest, financial or otherwise. To the contrary, Korb was
hired to be the corporation's spokesperson, and he spoke against the interests
of the corporation. The topic was one of acute concern to Raytheon.
Regardless of whether Korb believed himself to be acting privately rather than
as a Raytheon employee, and regardless of what Korb actually said, the public
perception after the press conference was that a Raytheon lobbyist advocated a
reduction in defense spending. Raytheon had a financial stake in not
advocating that position. Therefore, it determined that Korb had lost his
effectiveness as its spokesperson. There is no public policy prohibiting an
employer from discharging an ineffective at-will employee. The fact that
Korb's job duties included public speaking does not alter this rule.3
- 3 We emphasize that Korb's situation does not fall within any public
policy that may protect the speech of a whistleblower who speaks against
his or her employer's interest. [citations omitted]
Raytheon is not attempting to
suppress Korb's speech in order to cover up its own wrongdoing. Nor is
there any allegation that Raytheon is discharging Korb in an attempt to
deprive him of a contractual benefit to which he is otherwise entitled.
[citations omitted]
- 574 N.E.2d at 372.
At first glance, this seems like the obviously correct result.
The law should not require an employer continue to pay an
employee who is ineffective and publicly harming the company,
when the company is pursuing a lawful and ethical policy.
A reasonable analogy would be that Korb was hired to be
a cheerleader and, when he began to cheer for the other team,
he was dismissed. It seems contradictory for Korb to believe
that defense spending should decrease, while Korb was a salaried
employee of a corporation that was paying him to advocate increased
defense spending —
Korb was in the wrong job or employed by the wrong company.
But let me play the role of professor and present some of the
arguments for allowing Korb's wrongful discharge claim.
This case presents some fascinating issues for discussion.
freedom of speech
The Massachusetts Supreme Court tersely dismissed Korb's
claim under the state civil rights statute:
- Although Korb has a secured right to speak out on matters of public concern,
and he has a right to express views with which Raytheon disagrees, he has no
right to do so at Raytheon's expense. Korb was hired to be an advocate for
Raytheon. After he spoke, he lost his utility as Raytheon's advocate.
Raytheon therefore determined that, in such circumstances, it would no longer
pay him to be its advocate. That business decision was not an
interference with any secured rights. Korb is free to express whatever
opinions he wishes. Raytheon need not pay him to do so.
- 574 N.E.2d at 372-373.
Just for a moment, let us contrast the almost nonexistent freedom of speech
rights of an employee (e.g., Korb) of a private corporation with the freedom
of speech rights of an employee of government.
The final two sentences in the preceding quotation from the
Massachusetts Supreme Court opinion in the Korb case
remind me of the famous dictum of Oliver Wendell Holmes in an 1892
Massachusetts case that involved a policeman who was a member of a
"political committee" and who solicited money for that committee.
The policeman was then discharged from the police department.
The ex-policeman petitioned the court for restoration of his employment,
and the Massachusetts Supreme Court declared:
- The petitioner may have a constitutional right to talk
politics, but he has no constitutional right to be a policeman. There are few
employments for hire in which the servant does not agree to suspend his
constitutional rights of free speech as well as of idleness by the
implied terms of his contract. The servant cannot complain, as he takes the
employment on the terms which are offered him. On the same principle the city
may impose any reasonable condition upon holding offices within its control.
This condition seems to us reasonable, if that be a question open to revision here.
- McAuliffe v. Mayor of City of New Bedford, 29 N.E. 517, 517-518 (1892).
- This view was the law in the USA for many years, but,
beginning in the 1950s, has been thoroughly
repudiated by the U.S. Supreme Court for the situation
involving a government employee. The following cases show this
repudiation:
- Those precedents have long since rejected Justice Holmes' famous dictum,
that a policeman "may have a constitutional right to talk politics, but he has
no constitutional right to be a policeman," McAuliffe v. Mayor of New
Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892).
- Board of Cty. Commissioners v. Umbehr, 518 U.S. 668, 674 (1996).
- The Court has rejected for decades now the proposition that a public
employee has no right to a government job and so cannot complain that
termination violates First Amendment rights, a doctrine once captured in
Justice Holmes' aphorism that although a policeman "may have a constitutional
right to talk politics ... he has no constitutional right to be a
policeman," McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.
517 (1892). A State may not condition public employment on an employee's
exercise of his or her First Amendment rights. [citations omitted]
- O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 716-717 (1996).
- Connick v. Myers, 461 U.S. 138, 143-144 (1983).
- We conclude that policemen, like teachers and lawyers, are not relegated to a
watered-down version of constitutional rights.
- Garrity v. New Jersey, 385 U.S. 493, 499-500 (1967) (distinguishing McAuliffe).
Legally, there is a big difference between an employee of
the government (e.g., a policeman) and an employee of a private
corporation. First Amendment rights only restrict the
government. Courts have consistently enforced a rigid rule
that private corporations do not need to respect
freedom of speech for their employees.
One might wonder if better law would be for all organizations,
including corporations, to respect certain civil liberties of people.
When the First Amendment to the U.S. Constitution was adopted
in 1791, large corporations were more one hundred years in the future.
The concern in 1791 was excessive power by government,
not by corporations.
While the First Amendment to the U.S. Constitution only restricts
the government's interference with freedom of speech, states may
provide more rights to their citizens than what is granted in the
U.S. Constitution. In another context, Massachusetts
seems to have done that. Redgrave v. Boston Symphony Orchestra,
502 N.E.2d 1375 (Mass. 1987); Bally v. Northeastern Univ.,
532 N.E.2d 49, 52 (Mass. 1989)("... the Boston Symphony Orchestra
violated the [Civil Rights] Act because its cancellation of its
contract with Redgrave had the effect, intended or otherwise,
desired or not, of coercing Redgrave not to exercise her First Amendment rights.")
some other issues in the Korb case
Korb was speaking as a member of a nonprofit organization
during his lunch hour, not as a spokesman for Raytheon.
Does that characterization make Korb's speech,
in his role as a private citizen, more worthy of protection?
(Or does Korb's high-profile position make his connection with
Raytheon continuous, even during Korb's lunch hour, evenings, and weekends?)
Examining this issue further, I raise the hypothetical issue
"Could Korb write a personal letter to his Congressman on a plain sheet of
paper (i.e., not on Raytheon stationery, and making no mention of his
employment with Raytheon) that advocated decreased defense spending?"
The legal answer is that, while Korb might have protection
against retaliation by the government (e.g., termination of his
employment by the government), in fact, Korb was employed by a private
corporation, not by the government.
Therefore, the First Amendment gives Korb no protection
against Raytheon.
This answer seems wrong to me, as it requires a person –
as a condition of employment by a private corporation –
to surrender the right to express an opinion on a current political issue
and actively participate as a citizen in a democracy.
There were telephone calls to Raytheon from two U.S. Navy officials,
unspecified U.S. Air Force officials, and a staff member
of the Senate Armed Services Committee. Did those actions of
government officials constitute interference with Korb's First Amendment
rights? Or constitute tortious interference with Korb's employment contract?
We do not know, because Korb did not sue them, so those questions
were not presented to the courts.
One can ask whether a company like Raytheon, which receives nearly all
of its income from business with the U.S. Government, has
taken on some aspects of a governmental entity, so the private
employer's termination of Korb's employment is state action.
Such an argument was used successfully in
Holodnak v. Avco Corp., 381 F.Supp. 191 (1974),
aff'd, 514 F.2d 285 (1975),
cert. den., 423 U.S. 892 (1975)(Union member
was awarded US$ 9113 plus attorney's fees for violation
of his First Amendment rights after Avco Corp. violated
the "just cause" provision in the collective bargaining agreement.).
While the U.S. Congress could conceivably enact a law requiring that defense
contractors – as a condition for receiving government contracts –
respect freedom of speech of the contractor's employees,
Congress has not enacted such a statute.
Alternatively, Congress could enact legislation to establish government
organizations to develop and make weapons and other military equipment,
and forbid the U.S. military to purchase weapons from private
corporations. This last proposal is analogous to some states in
the USA that create a state agency to sell strong alcoholic beverages,
because it is allegedly immoral for businesses to make a profit
selling alcohol for consumption. I think a stronger argument
could be made that it is immoral for businesses to make a profit
selling weapons to the military. On the other hand, I am more
confident of the ability of competitive bidding by private corporations
to develop innovative weapons than a monopolistic government bureaucracy.
These are all intriguing legal and public policy issues.
My personal opinion is that the Massachusetts courts rendered
the correct decision that is consistent with the well-established law in the USA.
But "What should the law be?" remains an unanswered question.
Novosel case
There is a tiny bit of case law in the USA that suggests
that private employers can neither censor nor coerce political speech by their
employees. One intriguing case involved the wrongful dismissal of Novosel,
a district claims manager in Pennsylvania for Nationwide Insurance Company.
The U.S. Court of Appeals summarized the facts of that case
in the following paragraph:
- In late October 1981, a memorandum was circulated through
Nationwide's offices soliciting the participation of all employees in
an effort to lobby the Pennsylvania House of Representatives.
Specifically, employees were instructed to clip, copy, and obtain
signatures on coupons bearing the insignia of the Pennsylvania
Committee for No-Fault Reform. This Committee was actively supporting
the passage of House Bill 1285, the "No-Fault Reform Act," then before
the state legislature.
The allegations of the complaint charge that the sole reason for
Novosel's discharge was his refusal to participate in the lobbying
effort and his privately stated opposition to the company's political
stand. Novosel contends that the discharge for refusing to lobby the
state legislature on the employer's behalf constituted the tort of
wrongful discharge on the grounds it was willful, arbitrary, malicious
and in bad faith, and that it was contrary to public policy.
Alternatively, the complaint avers a breach of an implied contract
promising continued long-term employment so long as Novosel's job
performance remained satisfactory.
- Novosel v. Nationwide Insurance Co., 721 F.2d 894, 896 (3dCir. 1983).
I note that Novosel, unlike Korb, made no public statement that
disagreed with his employer's political agenda. Novosel simply
refused to participate in a lobbying campaign that advanced his
employer's interests. Novosel also stated his opposition privately
inside the company.
The U.S. Court of Appeals found that Novosel had stated a valid claim
for wrongful discharge and remanded the case for trial.
In passing, the Court of Appeals said:
- Although Novosel is not a government employee, the public employee
cases do not confine themselves to the narrow question of state
action. Rather, these cases suggest that an important public policy is
in fact implicated wherever the power to hire and fire is utilized to
dictate the terms of employee political activities. In dealing with
public employees, the cause of action arises directly from the
Constitution rather than from common law developments. The protection
of important political freedoms, however, goes well beyond the
question whether the threat comes from state or private bodies. The
inquiry before us is whether the concern for the rights of political
expression and association which animated the public employee cases is
sufficient to state a public policy under Pennsylvania law. While
there are no Pennsylvania cases squarely on this point, we believe
that the clear direction of the opinions promulgated by the state's
courts suggests that this question be answered in the affirmative.
- 721 F.2d at 900.
While Novosel has not been overturned by a higher court,
it is also true that many other courts
have failed to follow the holding in Novosel.
Thus, one should not rely on the holding in Novosel,
as it is not mainstream law in the USA.
One reason why "there are no Pennsylvania cases squarely on this point"
is that all attorneys know that freedom of speech cases
require state action, hence attorneys would not challenge
such a fundamental and well-known law.
All of these disclaimers having been said, I believe that
Novosel correctly stated what the law should be.
In my opinion, this issue is not about general freedom
of speech in the First Amendment (which is only freedom from
state action), but involves the personal right of a citizen to express
an opinion on a political issue and to participate in democratic
government. The First Amendment is only part of this broader
right to participate in government.
Conclusion
Fundamentally, the Korb and Novosel cases present
a conflict between:
(1) the right of a private employer to have loyal employees
and (2) the right of all citizens to actively and sincerely participate in
a democracy. If a democratic government is to function efficiently,
there needs to be a public discussion of important issues, such as
the amount of money spent on defense, before decisions are made.
Because of Korb's and Novosel's experience and expertise,
they were a particularly valuable participant in this essential public
discussion of pending issues before the legislature, a point made by the
U.S. Supreme Court in Pickering,
391 U.S. at 571-572 (1968)
(commenting on value of contribution by teacher to public debate over
funding of education).
I suggest that the law should resolve such conflicts
by recognizing that active participation in democratic government
is a more important public policy than absolute loyalty to a for-profit business,
but my opinion is definitely not the law in the USA.
Giving participation in democratic discussion a higher value than
loyalty to a for-profit business should have little effect on businesses
that are operating in both a legal and ethical way, as well as contributing to
the public good.
The blunt honesty of the little boy in the children's story about
the Emperor Who Wore No Clothes is not the way of sophisticated
adults in the USA who want to stay employed.
An employee who dares to criticize openly policies and decisions of management
would be considered by most adults to be naive, unrealistic,
hopelessly idealistic, and other pejorative labels.
I remind readers that employee's rights in the USA are
extremely limited.
Employers can, and frequently do, terminate employment
of employees in the USA who have "too much" integrity or ethics.
this document is at http://www.rbs2.com/freespch.htm
revised 23 July 2000
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