Let’s talk about First Amendment rights.
The First Amendment allows journalists to gather and disseminate the news without government restraint. It allows the press to inform the public and hold those in power accountable. The First Amendment is essential for the functioning of newspapers. It also protects individual expression. It is an important underpinning of democracy.
We really cannot claim and protect our rights if we cannot define what they are. So what does the First Amendment say? “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.”
Given the First Amendment, can there be consequences for speech? Yes.
Given the First Amendment, is the right to speak unfettered? No.
The rights granted to citizens by the U.S. Constitution are not absolute and are subject to limitations. While the Constitution establishes fundamental rights, these rights must coexist with other laws and regulations. We cannot slander, threaten, foment, or otherwise do harm by speech. We cannot falsely scream “fire” in a crowded theater. (The last is a paraphrase from Supreme Court Justice Oliver Wendell Holmes Jr.’s opinion in Schenck v. United States. In 1919, during World War I, SCOTUS held that the defendant’s speech in opposition to the draft was not protected speech.) Let’s try an example: A man writes a letter to the Editor making information public that a private organization had promised not to divulge. It was not just any organization; it was the one the man worked for. It was not just any promise: a major contributor exacted. The organization hoped the donor would contribute annually.
The letter, breaking the promise, was seen as threatening that hope. When asked to take the letter down for the good of the company, the employee claimed his First Amendment right. Did he have one in this case?
Not wanting to grapple with a thorny “freedom of speech” issue, the organization equivocated, and stated, “[he] wrote it as an individual,” and made clear, “Please know that [his] decision to submit the letter was not discussed with, approved by, or endorsed by [the organization]. We remain committed to…Our priority continues to be respecting the guidance that has been given to us and maintaining the trust of everyone involved.”
So, if there were any consequences for the organization, they would throw him under the bus. That’s one way to deal with it, but frankly, it avoids the issue of whether the employee did have a First Amendment Right. For our purposes, let’s grapple with the issue.
In our case, and in general, the First Amendment does not stop private employers from disciplining employees for speech that violates workplace rules or conduct standards. So, if he violated an internal policy or defied rules, contracts, professional standards, or confidentiality, the organization may be able to respond with criticism, discipline, a reprimand or termination as long as that organization applies policies consistently.
Bottom line: We citizens have rights, but we also have obligations to one another and to obey the law.
In upcoming issues, SU will grapple with the First Amendment if that same employee worked for a government organization – would his rights be different? What about a newspaper or newscaster and the role of politically correct speech and free speech.
