Why do so many people misunderstand what Freedom of Speech means?

Freedom of speech (as it is in the US Constitution) does not allow you to say whatever you want in public and keep your job. The only exception to that that I know of is in the case of whistle blowers.

What it does allow you to do is say whatever you want in public (minus libel, disturbing the peace, etc) and not be arrested for it.

If you say something in public your employer doesn't like, you have no protection from getting fired.

Should my boss be able to fire me for having a blog that expresses opinions that are not the same as his?

Bryant
Check it out --> http://politicalcomment.blogspot.com

This has nothing to do with me. This is what the Constitution says.

The right to free speech protects US citizens from the GOVERNMENT not from each other or corporations.

I'm actually one of the more pro-corporate people around here (if such a thing is possible at DU) and even I don't trust them that far.

But if that's the sort of thing you like, well, to each their own.

Bryant

I would imagine if Imus had been shitcanned for one of his anti-Bush tirades we'd all have a different opinion.

At any rate, while I love the Constitution, I don't limit my own definition of rights to it. I am in favor of Freedom of Speech for everybody all the time except in very very limited cases (i.e. fire in a crowded theater). I'm also grown up enough to realize that fighting for freedom of speech inevitably means fighting for the right of assholes to be assholes. That's the way it goes.

But, as I said earlier, to each their own.

Bryant

with 2/3 majority

This is not my "opinion", but what the Constitution says. Now if we want to change what the Constitution says, that's fine.

and I believe they have.

Bryant

that some corporations and customers didn't like, so they stopped playing their music.

in some, but not all settings. The protections you have to protect these rights against corporate infringement (within limits) are the courts and civil penalties. The boundaries of law are the constitution, bill of rights, and previous court precedents and subsequent enacted law... Employment law is similarly decided within these boundaries. You do not automatically check your individual constiutionally-protected rights at the door when you enter the work place. Yes, there are employment-based restrictions on some speech, but the employee is "protected" from illegal infringment by the employer by nature of civil penalties and court redress of grievances.

“...This is a free country. Every American has the right to express an opinion on issues of public significance. In the private sector, of course, the exercise of that right may entail unpleasant consequences. Absent some contractual or statutory provision limiting its prerogatives, a private-sector employer may discipline or fire employees for speaking their minds The First Amendment, however, demands that the government respect its employees' freedom to express their opinions on issues of public importance. As long as that expression is not unduly disruptive, it simply may not provide the basis for discipline or termination…”

US Supreme Court Justice Stevens, writing for the majority in Waters v. Churchill, USSC (1994)

I believe...

Imus was on the clock

Actually even that isn't entirely parallel. If it were the company's blog and you were writing on it during company time, *that* would be parallel.

But the OP's statement was considerably more broad than that.

Bryant

then I guess I agree with you because I'd be very upset if I got fired for, say, going to a peace rally or writing here on my personal time. Though I don't work - I'm a stay at home mom.

On the job slightly different.

subsidize your free speech you are wrong. Corporations exist to protect the money making processes. When you present a threat to the bottom line you get cut loose. Imus has found out that he has at least that much in common with the peasants.

then yes, you should be fired.

Probably the same thing now that I think about it.

Bryant

you'd be fired. ;)

Your question has no relevance to the Imus situation.

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only from government reaction to it. Unfortunately, it doesn't protect private individuals from being fired for their political views, as far as I know.

Interestingly, while looking for any instance of a Supreme Court ruling in a case involving an employer being taken to court for disciplining an employee on the basis of speech, I found this article about one major corporation's legal trouble over its handling of an employee's racial speech. In this case, however, Avis asserted that a manager's derogatory remarks to his crew was not the corporation's problem because his speech was protected by the constitution. The SC (except for Clarence Thomas) disagreed:

http://legalminds.lp.findlaw.com/list/queerlaw/msg02856.html


On-the-Job Slurs Not Free Speech

By RICHARD CARELLI, Associated Press Writer

WASHINGTON (AP) - Rejecting a free-speech appeal from the nation's
second-largest car rental company, the Supreme Court today refused to let
an Avis employee use ethnic epithets at his San Francisco International
Airport job.

The justices left intact a ruling in which the California Supreme Court
said an Avis Rent a Car service station manager who harassed co-workers
with bigoted words could be ordered to stop using such language at work in
the future.

Today's action, taken over Justice Clarence Thomas' dissent, set no
national precedent. But it left standing a decision Avis lawyers said
gives California judges "astounding'' new power to impose prior restraints
on speech.

The challenged ruling "obliterates fundamental free-speech guarantees,
concluding that racially offensive speech is constitutionally unprotected
and can be banned in advance in the workplace,'' the Avis lawyers said.

The Avis appeal did not challenge a jury's finding that both Avis and
station manager John Lawrence illegally discriminated against Hispanics
employed as drivers to move rental cars between parking lots and check-in
and service areas.

The company and Lawrence had been sued by 17 Hispanic employees in 1993.
The lawsuit said Lawrence's treatment of them - constantly calling them
vulgar and derogatory names based on their ethnicity and lack of English
skills - violated the state Fair Employment and Housing Act.

The lawsuit accused Avis of doing nothing to stop Lawrence.

...

You and the OP will politely applaud. Good on you.

Bryant

I'm stating fact: The Constitution does not protect you from private reaction to your speech. It never has and never will because it simply can't. It only limits the government's power to restrict your speech or punish you for it.

If you work for a private employer, you could get fired for expressing the view that daylight savings time is a good thing, or that McDonald's is a good place to eat, or anything else, or even having a blog.

The point people keep trying to make to you, and you keep trying to deflect as somehow a preference of theirs rather than the FACT that IT IS, is that the Constitution does not restrict a private employer from taking actions; it restricts the Government. If you look up the history of legal cases decided by the courts, you will see that reemphasized. (Justice Stevens, possibly the most liberal justice remaining, made a very clear statement about this in one case, for example). The idea is that, if you think your private employer is too restrictive of your speech or other actions OFF THE JOB as well as on, you can quit and find another employer who is less restrictive. You can go to work for the government, who then must comply with the Constitutional protections.

If you want that changed, the Constitution must be amended.

If I'd have to hear these kinds of lectures.

Bryant

the truth of the information people are giving you, and then say that you want to debate a different point?

I just can't believe that people are happy about it.

retaliation especially in jobs where their political views have nothing to do with their job.

Would I be pissed if Olberman were fired for being liberal. Yes, very very pissed. But I would also tell MSNBC that it was to their own detriment as he is their best newsman and that is directly related to him being liberal. So, MSNBC realizing it is in their best interests to keep Olberman have not fired him and have instead given a large raise.

I question the possibility of changing the way it currently is simply because I have a hard time seeing how we could change it without stomping on other people's rights. The only way I could see this happening is if we redefine corporations not as people so they have no "free speech" as they do now. That would only be one of the things necessary to change.

Also, what speech would be allowed, what wouldn't? I don't think it should be changed at this point because I think that if we did, more problems would surface than are currently there.

But I think most people would realize there'd be no recourse in the courts.

They do when
employee is representing the company in public
while being paid and working on company property

They have limited authority when the employee is a union member.

What an employee does on personal time away from their place of employment is outside the company's authority. As long as they don't make derogatory statements against their employer in a public forum such as a blog. Unless, of course you are able to keep your identity secret.

Here in Indiana, I believe Best Lock tried to control the smoking of their employees away from work. State Supreme Court fortunately ruled against the company.

Just like a company doesn't have authority to prohibit drinking when not at work. But they do have the right to prohibit employees from being drunk while at work. And employees can be fired for having alcohol in their vehicles if on company property.

You are right that a union contract may provide more rights to employees. State and local laws may give more rights to employees. Individual contracts, and SOMETIMES, employee handbooks have been interpreted as contracts, may give more rights. But unless one of these or other limited exceptions applies, a private (non-government) employer very definitely MAY restrict off-duty behavior, such as drinking, smoking, engaging in political actions, and anything else. If you don't like it, you can quit and work for a less restrictive employer, and then the first employer would have no power to restrict anything you do. But as long as you want to work for the first employer, yes, the employer can restrict you, subject to the legal exceptions and limitations.

Check out the concept of employment-at-will and the exceptions to it with any legal source.

pertaining to employment. In addition, there are also 50 different state constitutions.

Imus was paid for his television/radio show, his employers have a right to limit what he says on the air. He's also a "personality" so they have a right to limit what he says in general if they choose to pay a salary. Free speech is primarily supposed to guarantee we are not tossed in jail for speaking out against our government, it's not a license to abuse a group of people at your employers expense.

This is what the Constitution says.

"Free speech means the right to shout 'theatre' in a crowded fire."

who did more to discredit the anti-war movement than nearly anybody.

Yeah I've read his stuff and it's juvenile and pretension crap.

I'll admit it's a clever quote though.

:rofl:

You are, technically, accurate.

Just because the 1st Amendment does not cover non-governmental situations does not mean that restrictions on speech in the so-called private sector do not implicate freedom of speech.

That's not "free" speech to me. I support his right to stand on a street corner for free and say whatever he wants to say. I also support his right to continue his routine as a stand-up comedian, where people who want to listen can pay for it. I just object to him earning millions of dollars through radio and television to insult women and people of other races.

You have a right to complain to the station that broadcasts Imus and to the advertisers that support his show.

The advertisers have a right to yank their ads from his show.

The station has a right to fire Imus for loss of revenue.

That's the First Amendment in action.

The noise over the FCC regulating the content that goes over the airwaves, on the other hand, is censorship.

within the purview of the FCC to censor.

It's censorship. The FCC has the right to regulate the airwaves, but regulating the content that is broadcast over those airwaves is a government censorship.

in this case.

Too few people are able to make the distinction between true censorship (as in government deciding what is appropriate) and the private enterprise system determining their own product--and Imus is no more or less a product than "American Idol" is.

He seemingly wants to be considered to be more than a "shock jock" or a morning zoo type disc jockey and wants to be a player on the news media/political scene. Those other types of radio hosts say this stuff all the time and get away with it. If his radio and tv bosses consider themselves news outlets and want to attract news/political personalities, and what Imus said prevents them from doing so then that is within their right.

The fact is that if your personality and what you say and do impacts your ability to do your job, then yes a corporation has a right to let you go. Plain and simple. And that's why he's in this shit storm now and say Howard Stern or Mancow or some other shock jock type dj is not. Because they don't want to play in that arena and they're not paid to play in that arena.

of all that "entertaining" excuse app the propagandists use. It didn't work for Michael Richards, shouldn't on Anus, Coulter, Limpballs et al.

when the big bad public calls them out.

In addition, you post also explains why comparisons between rappers and Imus are also off the mark. Imus even said that his show is for Howard Stern's audience once they get their GED. IOW, he sold his show as a mainstream news and entertainment show. Howard Stern does not do that. Howard has on strippers, porn stars, and other types of fringe entertainers. Thus, the public knows what they're getting themselves into by listening to his show.

When the public watches Imus, they are looking for informed content and humor. They're not expecting shock jock humor. You're not going to see John McCain on Snoop Dog's CD

Unless you're in a union, or you're president of the United States, you have no protection from getting fired.

Freedom of speech relates to talking in public and writing pamphlets, etc. It's meaning has been extended to cover electronic media, the internet, etc. With the usual caveats for libel, disturbing the peace, as you said.

I don't see a connection between the two. If your employer wants you gone, you're gone. A union is the only protection I can see in this realm, not the bill of rights.

Then any employer can fire you at any time for any reason other than for the Civil Rights laws.

In what setting, context do you believe your employer has control over your speech?

At work?
While expressly representing the company?
Any where at any time?


I'm guessing you are not an attorney? Nor am I, but it is my understanding that even on the job, the employer's rights over the employee are far from absolute (at least outside Bush*land). I believe that several cases over employees' right to unionize have been decided in favor of the employees-- that represent this very point. :shrug:

You can say whatever you want. You just can't expect to keep your job.

With respect to control over your speech (as implied in your example as the right to dismiss your employment):

In what setting, context do you believe your employer has control over your speech?

At work?
While expressly representing the company?
Any where at any time?


I'm guessing you are not an attorney? Nor am I, but it is my understanding that even on the job, the employer's rights over the employee are far from absolute (at least outside Bush*land). I believe that several cases over employees' right to unionize have been decided in favor of the employees-- that represent this very point. :shrug:


BTW, if this is meant to tie on to the Imus example... That is a contractural issue and quite different from the average JOE working in the office place. I don't deny that MSNBC has every right to fire Imus and no, it is not a free speech issue.

However, they can fire you for saying anything anywhere at anytime. They can't just fire people for no reason though, so it is possible that one may be able to sue for unjust firing if that could be proven in a court. They might then have to prove that what you said affected your job or your ability to do it.

I am not a lawyer, but I think this is how that works.

can fire for any reason for any time if you stipulate that it may be actionable in court or legally indefensible!

That's akin to saying I can steal anything at any time (but there MAY be legal consequences if I'm caught!)

I'm asking you under what settings do you believe an employer can legally and justifiably fire an employee for what they have said?
At work?
While expressly representing the company?
Any where at any time?

Like I updated above, they would have to prove that it had an affect on your ability to do your job or on the employer's ability to do theirs.

Again, I am not a lawyer, but this is how I think this works.

But this is outside the freedom of speech and into job laws on who can be fired and why so I am a little fuzzy on that. The point being that it is not protected under free speech.

yet you are lecturing about how many do not understand "what Freedom of Speech means?"

In fact there are many many murky areas in employment law regarding how far an employer can go with respect to termination where there are overlaps with an employee's civil rights, including free speech.

and I don't know much about that. I do not need to be a lawyer to understand free speech in the Constitution. I would to understand all the employment laws. I know what free speech is protected by the Constitution and that it does not in any way shape or form protect against employers.

personal cars, and for attending anti-war rallies on their personal time.

What are the parameters under which you believe an employer is legally entitled to fire an employee for their speech:

What they say on the job?
What they say while representing the company?
Any speech at all?

change the answer

Edit:
Reading it again I think you may have meant to reply to someone else because you seem to be supporting my argument re: getting fired for Dem bumper stickers.

You've said no employer can control your speech, but they can fire you for it. I'm not asking which speech can be controlled.

I'm asking which of these do you believe an employer can legally fire you for:

Speech on the job?
Speech on the job representing the company?
Any speech any time?

If you've answered these questions before, I have not seen it - please indulge me by answering.

But I do know you can be fired for the first two, the last one is questionable and may depend on whether or not what you said affects the employer in some way, but the general answer is: I don't know if they can legally fire you for speech not representing the company or on the job for any reason or if it has to be a well defined reason. That depends on employment laws which I don't know enough about.

Isn't that controlling an employee's speech? They could make an example of an employee and that would control the remaining employees with their speech.

I can see your argument there though, and it might have some basis for an argument in court, but not under "freedom of speech".

a control.

st license. That is control. Maybe it's a definition thing. But I don't appreciate being called disingenuous. The government can control speech by throwing you in jail. I'm pretty sure that one's speech is not allowed outside the prison. That is control. When the punishment stops your ability to do said speech. The government is not allowed to do that in this country because of the First Amendment.

threat.

Or to go back to your own position, you can broadcast anything you want and the FCC can retaliate by taking away your license. That's not controlling your broadcast.

job or your ability to do it. See my post upthread for more details.

Employment-at-will is the prevailing philosophy in the US. Unless one of the exceptions and limitations applies (such as equal employment laws--you can't fire someone because of their race or gender) the employer CAN fire you for no good reason, just as you can quit for no good reason. The key is understanding the exceptions and limitations.

If there is no relevant clause in your contract, then they have no control over your speech whatsoever, and if they dismiss you on grounds of it then you can sue them.

If you accept a contract saying "I will never, at any time, express any political opinion without the consent of my employer" then that's perfectly legitimate, and they can fire you if you break it.

In practice, the issue gets clouded because many contracts have ambiguous phrases about "conduct unbecoming" and such like.

But "to what extent should your employer control your free speech?" is not a question that has a universal answer, any more than "how much should your employer pay you?" or "what work should you do for them?" do - it depends on what terms you're employed.

And even a written contract may be considered so broad as to be actionable after the fact..

Not many at all, in my experience.

When employers (fueled by RW rhetoric, I might add) act as private little dictatorships. There ARE limits to what they can subject employees. Those employees do not automatically check all their rights at the door.

I could write what I know about employment law on one side of A4 and still have room for a diagram of the London Underground, to be honest, but I'm mildly surprised that you have any right to sue someone for stopping paying you to do something for any reason, or no reason at all, if you don't have a contract to do it.

will you prevail? That hurdle can be immense. However, the subject of what constitutes "wrongful termination" is one that most businesses and certainly public sector employers as well, do have to worry about. Thus the $$$ to be made on the many many seminars conducted on the topic. Having attended many of these over the years, I can attest that there is employer interest.

In the current corporatist climate, employers may be feeling far more confident that they would prevail, and there can be consequences to an employee taking an employer to court (beyond the extreme cost of litigation) in terms of future employment prospects... But one only has to look at recent examples, as Walmart to see that their employment promotion, hiring, and firing policies (and actions) are not totally without legal consequences.

I believe if not specified that in most cases, employment is not considered totally "at will" and that there needs to be cause for termination. I seem to remember reference to courts looking on an "implied contract" that takes into account "good faith" on the part of both employer and employee.

The consequences to employers who fire those who whistle blow (to state or federal work place safety inspectors) is one obvious example of limits to their ability to fire without cause. Obviously, employers can get around that by downsizing and layoffs for economic reasons--but that is an implied justification. And, again, under this administration, I'm guessing the obstacles to prevaling in court for wrongful termination may be significantly increased.

There may be some DUers specializing in employment law who can respond further. I certainly would defer to their experience in these matters.

British employers may have more rights to terminate employees than their European neighbors, but American Employers are even more employer friendly. Basically unless you are discussing a Civil Rights Violation (and those Civil Rights set forth in the Various Civil Rights Acts NOT the Bill of Rights) American employer retain the right to fire ANY worker at any time for any reason (Except when their is a written contract, either union or individual to the Contrary).

Please note the following reflects people who do NOT have a Written Employment Contract, if you have a Written Contract (Either through your Union or as an Individual) that contract sets forth your rights unless those rights are less than those set forth below):

i.e. you can quit at any time, and your employer can fire you at any time for any reason (except an illegal reason such as having to serve Military Duty, Jury Duty, Unionization efforts (Unless done on the job site) or a Civil Right Violation, i.e. Discrimination based on Race, Sex, if you have children ("Familiar Status"), disability, Religion or age (and in some Jurisdiction Sexual Orientation).

Notice Speech or Assembly is NOT a protected class (Unless part of a Unionization effort and then only if off the job site). Thus If I said "I hate Clinton" and you fire me for that, it is a perfectly legal termination (Through if I said "I like Obama" and you fired me because you hate the idea of a black man being President then a Civil Right violation would have occurred).

Now, while my employer has the right to fire me for any reason or no reason (But NOT an illegal reason) my right to unemployment insurance is a different matter. An employee who is fired for speech can apply for Unemployment Insurance for such an employee is entitled to unemployment insurance unless he committed "Willful Misconduct". Since saying outside of Work "I like Clinton" is NOT harmful to the employer it is NOT "Willful Misconduct" thus if I an fired for saying "I like Clinton" while off work, I may have no claim against my employer for my job, but I will get unemployment (On the other hand if I talk politics at work and it causes problems for my employer I can still be fired and denied Unemployment Compensation on the grounds what I was doing was harming the employer and thus "Willful Misconduct".

Now I go into Unemployment Compensation law for employers Unemployment tax is based on their employees salaries BUT is reduced based on how often an employer terminate an employee for no reason. If an employer NEVER lays off an employee except for willful misconduct, the amount of Unemployment tax he has to pay is the lowest possible (Just the Federal Portion to run the Unemployment Compensation system). Each time an employer fires an employee for no reason or for a reason that is NOT "Willful Misconduct" then the employer rates go up. Thus employer's have great interest to make sure they do NOT fire employees except for "Willful Misconduct". Thus while an employer can fire you for what you say OFF THE JOB, the employer will pay in the form of increase Unemployment tax.

:thumbsup:

But only during breaks when permitted to discuss other non-work issues.
Can wear union buttons or stickers at work.
Read and distribute union literature in non-work areas and during non-working times.

Caveat
It is protected by law but it depends on the appointed members of the NRLB. When the employer knows that they can get away with violating the law then they can and do fire employees that discuss forming a union.

While the NLRB will order the worker re-instated with back pay in about 3-4 weeks, the rest of the employees saw the message, talk union, be fired. The law sets NO OTHER PUNISHMENT for the Employer than reinstatement AND back pay. No punitive award is permitted. As a anti-union act firing an employee is almost a no cost act by the employer in the employer's fight against the union.

But this is a discussion about INDIVIDUAL Rights not collective/union rights. For that reason I mentioned Unions and union Contracts ONLY in the context of an individual right. What employers can do to prevent Unionization is huge, but not the topic in this thread except as it pertains to individual rights. We can do a whole thread on what an employer can do to prevent unionization (and the low cost most such efforts cost the employer) but lets keep this to what an non-union worker can do or can not do depending on his employer.

Union employees
Professional employees
Business executives

The last line should read:
If you say something in public your employer doesn't like, you have no protection from getting fired under the Constitutional right to free speech. There may be some employment laws that I am not aware of that give some protection from getting fired for unjust reasons.

are based? You seem to think the constitution does not apply, but in reality, all law is predicated on the basic framework of the constitution. State laws must be first and foremost consistent with the bounds of the state constitution, but ultimately within the bounds of the US constitution as well.


If a court decides in favor of an employer based on a law passed that is ultimately not found to be constitutional, an appeals court would throw out the earlier decision.

The employment laws must be constitutional.

An employment law cannot restrict free speech, but the employer is not bound by the Constitution to allow an employee to say whatever they want without firing them.

is corporate personhood. Large corporations wield power equivalent to some small governments, yet still have the same legal protections accorded to individuals under the Constitution. It's an unfair but perfectly legal imbalance of power.

In other words, your post is absolutely correct.

Esp. if you are an at-will employee. They can fire you because it's a sunny day.

from NBC given the fact that it had lost all of its ad support. And since there was a huge number of people who said that they would not purchase products from the companies advertising on Imus, it was a reasonable response for the companies to stop supporting him. When you think about it, the whole thing was market driven.

Protection from government, not from employers - though you'd think at this point in history, where the difference between the two is becoming slimmer, we would make some changes...

Who was caught drinking a Bud at a bar after hours. He ordered a Coors, but the waitress brought him a Bud, which he drank any way. His supervisor was at the same bar, and he was fired for drinking a Bud after work on his own time.

He was not able to sue to get his job back nor get compensation.

Corporations like CBS and NBC can afford to pay a whole lot more than you or I; corporations enjoy the benefits of free speech to a much greater degree than individuals ever could.

No matter what the Constitution says, if you wish to voice an opinion which runs counter to the prevailing views of the powers that be - either within govt or without - you will be prevented from doing so.