Regulating Worker Speech Needlessly

metshoodie2A Washington Post op-ed last week tells the story of a woman who decided to quit her job at a physician’s office because her employer wouldn’t let her keep a hoodie image as her computer desktop’s wallpaper. Brenda Howard had selected the image as a show of support for Trayvon Martin’s family in the wake of the Zimmerman trial. She writes of the boss’s disapproval:

On Aug. 1, at the end of a long work day, my boss called me into his office. Apparently, during the two weeks since I had selected the hoodie image for my computer desktop, some of my co-workers had complained. They felt that this image, which could be seen only when I logged in or minimized all the windows open on my screen, was inappropriate. My boss, looking distressed, told me that I had to change it.

There was no room for discussion between him and me or me and them. There would be no way to explain, to anyone who felt frightened or threatened by what I had done, that I wasn’t making some call to arms, or a black-power salute, or in fact trying to express any anger at all. It was merely an image of a piece of clothing worn by a young man who was wrongfully killed. By displaying it, I was simply saying that I was sad.

Obviously the boss’s position is legal — an employer gets to decide what is or isn’t displayed in a work space, including on the desktop of an office computer. But just because an employer can regulate expressive activity doesn’t mean it must do so. Howard’s situation is precisely the kind of overreaction I had in mind when I wrote about managerial regulation of expression in my book on the First Amendment and the workplace:

It isn’t all that hard to think of situations where employee expression poses a genuine threat to legitimate employer interests, and a functional free-enterprise system need not require employers to tolerate speech of that sort. It’s alarming, however, when people are punished on the job not because their speech concretely jeopardized employer interests, but because their actions trigger needless employer fears about the effects that might possibly occur. We have built in the American economy a management culture so dependent on predictability and control that even remote “threats” to the established order are treated with suspicion and dealt with harshly. The American legal systems of employment law and corporate governance largely excuse employers from worrying about how their actions square with constitutional values or human rights.

Howard writes in the op-ed that she left the meeting with her boss knowing “that he had every right to ask me to take it [the image] down, but I would not have respected myself if I had.” A silly managerial decision needlessly put a long-term employee in an untenable situation, all over the simple matter of harmless personal expression.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

A Very Broad Reading of the First Amendment

endnearThe Tennnessean runs a curious editorial this morning arguing that a noise ordinance citation slapped by the city of Franklin on street preacher John McGlone amounts to an infringement of First Amendment rights. McGlone was ticketed last April for doing his preaching with a mic and amplifier in violation of Franklin’s noise ordinance (contained in a municipal code section charmingly titled “Offenses Against the Peace and Quiet”).

The editorial is curious because it seems so patently misguided on the law. I’m as much of a free speech fan as the next person, but it is well-settled First Amendment law that government can regulate the time, place, and manner of expressive activity on public property. Laws or regulations that do restrict speech have to advance an important governmental interest, and must do so in a narrowly drawn way that allows alternative means of communication. It is well understood that limiting sound amplification qualifies (see, for instance, the 1989 Supreme Court case Ward v. Rock Against Racism), as long as the rules aren’t written in such a way as to penalize a particular viewpoint or stifle more expression than necessary.

In the Franklin case, McGlone was doing his thing during Franklin’s Main Street Festival near the Public Square. The noise ordinance says that “when a special event permit has been obtained from the City of Franklin, no other amplification of sound will be permitted within the area of the special event except that which has been applied for and authorized by the city pursuant to the permit application.” So when a festival vendor complained about McGlone’s amplified activity, the preacher was issued a ticket for an ordinance violation.

It is perfectly reasonable, practically and constitutionally, for municipalities to regulate with a permit process the use of amplified sound in public spaces. Cities can run afoul of constitutionality if they make the obstacles for obtaining a permit onerous, or are too restrictive in framing the circumstances in which amplified speech is permit-eligible. Franklin’s ordinance doesn’t arouse concern on either of these dimensions, even if there are other elements of the law that seem bizarrely specific (for instance, the actions “declared to be loud, disturbing and unnecessary” include “the blowing of any locomotive steam whistle or steam whistle attached to any stationary boiler except to give notice of the time to begin or stop work or as a warning of fire or danger”).

Bottom line: A rule saying that the authorized amplified sound within a permitted special event is the only amplification allowed within the area of that event offends neither common sense nor the First Amendment. As long as the Main Street Festival permit didn’t cover (and therefore restrict expressive activity within) an unjustifiably large area of the city center, it’s hard to see how McGlone has a case, nor how The Tennessean fathoms a free speech infringement. And even if the permit did reach too broadly in defining the festival’s footprint, there is still the city’s legitimate ability to regulate sound amplification on public sidewalks.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

Compelled Speech at Work II

The Murray Energy company made news back in August when some of the coal miners in its employ went public with statements that they were pressured by the company to attend a Mitt Romney campaign event on Aug. 14 at the firm’s Century Mine in Beallsville, Ohio.

Murray Energy returned to the public stage in its role as a leading proponent of compelled workplace speech with this piece at The New Republic late last week describing the firm’s extensive and continuing efforts to channel employee time and money to Republican candidates:

Since 2007, employees of Murray Energy and its subsidiaries, along with their families and the Murray PAC, have contributed over $1.4 million to Republican candidates for federal office. Murray’s fund-raisers have feted the likes of Scott Brown, Rand Paul, David Vitter, Carly Fiorina, and Jim DeMint. Home-state pols get love, too. Murray’s PAC and staffers are the sixth-largest source for Ohio senatorial hopeful Josh Mandel. They’ve given $720,000 to candidates for state office in the past decade.

We all know that federal law requires that firms treat employee participation in company PACs as strictly voluntary, but Alec MacGillis’s TNR investigative piece surfaces plenty of evidence suggesting that things work just a wee bit differently at Murray:

The accounts of two sources who have worked in managerial positions at the firm, and a review of letters and memos to Murray employees, suggest that coercion may also explain Murray staffers’ financial support for Romney. Murray, it turns out, has for years pressured salaried employees to give to the Murray Energy political action committee (PAC) and to Republican candidates chosen by the company. Internal documents show that company officials track who is and is not giving. The sources say that those who do not give are at risk of being demoted or missing out on bonuses, claims Murray denies.

MacGillis goes on to report that the inappropriate pressure on workers can be traced right to the top — to company founder, CEO, and board chairman Bob Murray:

Internal Murray documents show just how upset Murray becomes when employees fail to join the giving. In missives, he cajoles employees to attend fund-raisers and scolds them when they or their subordinates do not. In cases of low participation, reminders from his lieutenants have included tables or spreadsheets showing how each of the eleven Murray subsidiaries was performing. And at least one note came with a list of names of employees who had not yet given. “What is so difficult about asking a well-paid, salaried employee to give us three hours of his/her time every two months?” Murray writes in a March 2012 letter. “We have been insulted by every salaried employee who does not support our efforts.” He concludes: “I do not recall ever seeing the attached list of employees…at one of our fund-raisers.”

Corporate pressure on employees to take part in compelled political speech is nothing new, and clearly the so-called “voluntary” nature of PAC contributions inside firms is experienced by many as something other than voluntary. A survey of finance executives in 2004 by CFO Magazine found 24 percent of respondents saying that not giving to their corporate PAC could be detrimental to their careers, and another 16 percent saying they were unsure. At Murray Energy, compelled speech is apparently a corporate way of life, corralling management and rank-and-file employees alike.

Compelled Speech at Work

Quick quiz: What’s worse than a company that compels its workers to engage in expressive political activity? Answer: When it forces workers do that and docks their pay at the same time.

Such is the circumstance experienced by a group of Ohio coal miners, who say they were pressured by their employer to attend a Mitt Romney event on Aug. 14. This came to light Monday when employees who feared they’d lose their jobs complained to a radio talk show host. That host then discussed it with Murray Energy’s CFO Rob Moore, who offered one of the great one-sentence bits of doublespeak uttered in recent memory. According to Moore, company managers “communicated to our workforce that the attendance at the Romney event was mandatory, but no one was forced to attend.” The mine was shut down for security reasons, so workers were not paid for the day.

Moore, with no shortage of presumption and no hint of irony, also told the radio station that the Romney rally was “an event that was in the best interest of anyone that’s related to the coal industry in this area or the entire country.” The man may have overstepped his bounds a bit, given that later Monday a company spokesman commented that “no employees were forced to attend the Romney event,” adding that participation was “completely voluntary.”

Murray Energy’s executives are big contributors to the GOP, and CEO Bob Murray is said to be a serious climate change denialist. The firm’s leaders certainly have every right to believe what they want and to write campaign checks to whomever they want. Sadly, in our very timid system of legal protections for the expressive rights of private sector workers, they also have the ability to coerce their workers into political submission. Saying after the fact that participation was “voluntary” scarcely dilutes the fear employees no doubt perceived about the true nature of that “voluntary” opportunity.

The Cleveland Plain Dealer reports that the Romney campaign did not respond to a request for comment. There’s a shocker.

The Free Speech Police: University Edition

On Inside Higher Ed today, a story about universities that seek to regulate social media use by student athletes. Some programs require athletes as a condition of participation to use monitoring software that alerts school officials when untoward thoughts become untoward posts and tweets. The lesson that university athletics departments apparently want to impart to their young charges is that freedom of expression might be a lovely concept, but not for you.

According to a report in the Courier-Journal, the University of Louisville uses software to flag over 400 words and phrases in posts and tweets, mostly having to do with substance use and sex. Most of the phrases flagged by the University of Kentucky’s version of the software are sports agents’ names. They do this monitoring with a product such as UDiligence, which searches social network profiles and posts (Facebook, Twitter, MySpace, and YouTube) for “for profanity, racial slurs, sexual connotations, and mentions of weapons, drugs and alcohol” as well as any custom keywords provided by a given school’s athletic department. Although the software doesn’t necessarily require athletes to hand over their social media account passwords, it does require that they grant access. If this seems like it might be just a wee bit of an infringement on student athletes’ freedom of expression, that’s because it is.

The recent development on this is movement in some states to bar colleges and universities from requiring that student athletes share access to their social media accounts as a condition of participation in sports. The latest is a bill passed last week by the California legislature and awaiting the governor’s signature. The measure defines social media content broadly to include “videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” It prohibits any public or private educational institution from requiring that any student or prospective student…

(1) Disclose a user name or password for accessing personal social media.
(2) Access personal social media in the presence of the institution’s employee or representative.
(3) Divulge any personal social media information.

The California bill bars these schools from disciplining, suspending, expelling, or threatening same for refusing to comply with a request for social media account access or information. Sounds like an excellent approach.

Through a Freedom of Information request, the Courier-Journal reviewed hundreds of pages of flagged posts by athletes at the University of Kentucky, finding some tweets that clearly would reflect poorly on the school’s athletic program (I have some OxyContin. It will make you feel good. #drugs) but others caught in the inevitably clumsy trap of a imprecise keyword search (God is the only one who can heal me, help me & fight for me, flagged because of the word “fight”).

No one doubts that student athletes, like others kids that age, will say dumb things from time to time that the university might reasonably wish they hadn’t said. Social media broadcasts those lapses of judgment to a wider audience. But as Ken Paulson of the First Amendment Center in Nashville points out,

Coaches who impose blanket bans or chill players’ speech by watching everything they post are not doing their athletes any favors. The handful of athletes who go on to professional sports will have to deal with social media throughout their careers, and they won’t learn anything if they’re not given any latitude. The best approach is to give student-athletes the education they need to enter the workplace and to become well-rounded citizens. That includes the smart and responsible use of social media. There’s no better place to learn those lessons than in America’s high schools and colleges.

Well said.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

Facebook “Likes” and Free Speech

When I told a CNN reporter last week that surely, the Virginia case of a sheriff’s deputy fired for “liking” his boss’s opponent will be overturned on appeal, it didn’t occur to me that any reputable constitutional scholars would make a case to the contrary. But surprisingly, according to a story Monday in the Hampton Roads, Virginia Daily Press, First Amendment expert Robert M. O’Neil at the University of Virginia thinks the lower court ruling dismissing the deputy’s case could stand. Here’s how the Daily Press reported O’Neil’s comments:

O’Neil said he didn’t agree with Jackson when the judge seemed to indicate that “actual statements” were needed for something to qualify as free speech. But he said he agreed that more evidence is “crucial” to determine if someone was expressing a view by hitting the “Like” button.

“I am not sure that I would recognize that hitting the ‘Like’ button is an expression,” said O’Neil, who said he’s typically a strong supporter of the ACLU and free speech.

“Judge Jackson I think is correct,” he said. “‘Liking’ something isn’t sufficiently expressive, not by itself. There should some credible evidence of like or dislike that would create a context. I would expect evidence of intent, some context …more than simply pushing the ‘Like’ button.”

O’Neil said it was hard to know what the Court of Appeals would do, but he predicted that if the case ever got to the U.S. Supreme Court, “it would affirm Judge Jackson’s view” in some fashion.

O’Neil is no slouch — he’s a law professor emeritus at UVa, a former president of the university, and a former director of the Thomas Jefferson Center for the Protection of Free Expression. In a case where virtually every legal expert who has weighed in with an expectation that the District Court decision to dismiss will not stand, O’Neil’s input is a surprising reminder that there are two sides to any case. (But surely he’s wrong nonetheless!)