It is one of the most commonly cited fundamental rights in America: the constitutionally protected right to free speech guaranteed by the First Amendment.
From coffee shop political debates to Occupy Wall Street rallies, the concept is part of American culture.
But as another Labor Day is upon us, it is worth asking: Can the First Amendment prevent you from getting fired or suspended at work for speaking your mind, as advocates for U.S. women’s soccer team goalkeeper Hope Solo have said?
Legal experts agree the answer is probably not.
“The First Amendment is by far the most misconstrued part of the Constitution,” said Steve Bogue, a labor and employment lawyer at the Omaha firm McGrath North.
There are protections for worker speech related to employment issues, broad ones contained in not the Constitution but the National Labor Relations Act. And experts say some of those protections are being broadened in the era of social media such as Facebook and Twitter, technologies to which dissatisfied employees are increasingly turning to voice complaints.
But as far as the First Amendment goes? Unlikely.
However, Solo’s case might be instructive as it relates to the workplace in general, labor and employment attorneys say.
The 35-year-old soccer star was suspended from the U.S. women’s national soccer team last month after the 2016 Olympic Games. The U.S. Soccer Federation objected to her having called the Swedish team that beat the U.S. in the Olympic quarterfinals cowards who were not the best team on the field. She also made some tasteless jokes about the Zika virus during the Olympics.
In the end she was suspended from the team for six months, censured by U.S. Soccer for making remarks contrary to the Olympic spirit.
It seems set to work out to a termination, given also that her contract was not renewed.
And the contract is an important point in this case. U.S. Soccer athletes are paid — it is very much like a job in the professional era of Olympic sports. Women’s team members — who also play for professional clubs — earn a minimum of $72,000 for their national team efforts during a given year.
And just so that there is no doubt that they are considered workers, women’s team members this year filed a complaint that is under investigation by the Equal Employment Opportunity Commission, citing pay disparity with the men’s national team. So experts agree, there is little doubt that Solo’s case is analogous to the workplace in general.
But what about the First Amendment? That came in only after the discipline, when the attorney representing the women’s national team’s players association called the suspension “a violation of Ms. Solo’s” First Amendment rights.
Yawn, say Omaha’s labor and employment legal experts.
“You hear statements like this all the time in these contexts,” said McGrath North lawyer Bogue. “They are almost never correct.”
That is because the legal protections afforded by the First Amendment generally don’t apply to general, everyday speech, such as between family members, work colleagues, supervisors and employees, students and teachers, etc.
Rather, it has a very specific and narrow meaning.
“The First Amendment applies to government restrictions on speech, but doesn’t prohibit action by private employers,” said Nathan Burkman, a labor and employment attorney at Omaha’s Koley Jessen firm. “Although employees working in the private sector have the right to speak their mind, they can’t look to the First Amendment for protection if their employer determines that their speech crossed the line.”
Said another way, the First Amendment is designed to prevent government retaliation to speech and expression it might deem objectionable. It is the First Amendment that seeks to prohibit government acts such as throwing critics in jail, shutting down opposition media outlets or roughing up political protesters.
What it doesn’t do is give people the right to say whatever they want and expect to be free from sanction, said Ken Wentz, a labor and employment lawyer at the Omaha office of the Jackson Lewis law firm.
Labor and employment lawyers, Wentz said, often hear the First Amendment defense after an employer disciplines an employee for speech that runs afoul of company policy, such as that which is harassing, crude, insulting or otherwise detrimental to the workplace.
“I have First Amendment rights to free speech!” Wentz said, summarizing a common defense of employees disciplined for saying the wrong thing. “While the First Amendment typically prohibits the government from interfering with your speech, it doesn’t your nongovernmental employer.”
Wentz also said the definition of “speech” under the First Amendment has been found to cover more than just spoken or written words.
“The First Amendment protects not only speech but ‘expression’ that is often commingled with speech,” Wentz said, noting the recent silent pregame protests of San Francisco Giants quarterback Colin Kaepernick, who has declined to stand for the national anthem before recent games. (While a controversial action, Kaepernick appears to be facing neither government nor employer sanction.)
So what about government employees? Does working for the local, state or federal government give you carte blanche to make YouTube videos harassing your boss and co-workers? Sorry, they already thought of that one, too.
“Even public sector employees do not have absolute protection under the First Amendment,” said Koley Jessen’s Burkman. “When looking at actions in response to public employee speech, courts will balance the employee’s right to speak on matters of public concern with the government’s right as an employer in running an efficient and effective workplace.”
So, what gives? Is there anything people can say critical about their workplace without the risk of getting canned?
The answer is yes, and it is governed not by the First Amendment but by Section 7 of the National Labor Relations Act, the 1935 law that gives employees the right to bargain collectively.
But union or unionizing activity is not the only speech and behavior protected by Section 7. The law clearly states that employees of union or nonunion workplaces are free “to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
And “concerted effort for mutual aid or protection” is being broadly defined these days, according to McGrath North’s Bogue. In recent cases, he said, the National Labor Relations Board has found that social media postings widely critical of company policy have been subject to the protections of Section 7. That means the people who produced them can’t be fired over them.
Even vulgar and crude speech on social media, as long as the underlying intent is concerted effort in the pursuit of mutual employee aid and protection, has been protected, Bogue said. That means pay, benefits, working conditions and a host of other workplace-related topics might be fair game for employees to criticize, lampoon or crudely depict on Facebook, Twitter or YouTube.
“So forget the First Amendment,” Bogue said, “it’s Section 7 of the National Labor Relations Act.”
Bogue said “there is no doubt about it” that NLRB rulings on the issue have expanded worker speech protections with the advent of social media and under the current presidential administration. The employee handbook requiring workers to refrain from conduct detrimental to the company, he said, is no longer enough to protect employers.
“The days of the shotgun policy requiring good behavior are over,” Bogue said.
Still, employers have a lot of leeway, said Anne Marie O’Brien, whose practice encompasses labor and employment law at Omaha’s Lamson Dugan. She said private employers can generally create rules limiting workplace speech as long as the purpose is not discriminatory or in retaliation for reporting improper acts on the part of the employer.
O’Brien agrees that Section 7 affords broad protection for workers engaged in concerted action for mutual benefit, but said the application of the act is very narrow.
“This should not be construed as blanket permission to blog bad things about your employer,” O’Brien said. “Blogging can still get you fired.”