Roseanne, Twitter, And Free Speech For Employees
What free speech rights exist in the workplace?
(Photo by Astrid Stawiarz/Getty Images for SiriusXM)
Ed. note: This week’s column was co-authored by one of the summer associates at my firm, Alex Lilly, a rising 3L at the Emory University School of Law. To be clear, Alex wrote the article, I moved some stuff around, and uploaded it to the website. Thank you, Alex!
A few weeks ago, 90s sitcom star Roseanne Barr seemed to be back and better than ever. When ABC decided to reboot her popular show Roseanne after taking a 20-year hiatus, few expected it to be such a network success in 2018.
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The show highlighted Roseanne’s real-life support of President Donald Trump and drew large support for its political incorrectness and social commentary, addressing issues such as unemployment, drug abuse, healthcare, poverty, and other current issues.
Trump even called Barr to congratulate her on the ratings success after its premiere.
Over Memorial Day Weekend, however, things took a turn for the worse. Roseanne, who’s made headlines for her controversial tweets, posted “Muslim brotherhood & planet of the apes had a baby=vj,” with the “vj” referring to former Obama advisor Valerie Jarrett.
Jarrett is African-American and born in Iran. The tweet ignited public outrage. Within hours, ABC president Channing Dungey released a statement cancelling Roseanne and calling Barr’s remarks “abhorrent, repugnant, and inconsistent with our values.”
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Some questioned the role of free speech in this scandal and the decision to cancel the show.
Other recent news stories similarly garnered attention and stirred debate about workplace speech. In August, for example, an engineer at Google was terminated after circulating a memo claiming that gender inequality in the tech industry can be attributed to biological differences between men and women.
After the Charlottesville protests, Logan Smith created a Twitter account to identify white nationalist protesters so that the protesters’ employers would be aware of their behavior and potentially fire them.
All of this has a lot of people wondering: What free speech rights exist in the workplace?
Free Speech and Employment
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There’s rarely a right to job-protected free speech in the workplace. Typically, employment is at-will, and most employers can terminate an employee for any reason, including for things an employee said online or otherwise. But there are of course a few limited exceptions.
The first exception is when an employee has an employment contract, a situation usually limited to key executives and other hard-to-replace individuals (like stars of television shows). Many such contracts restrict the reasons for which the employee can be fired.
If the employee is fired for any reason other than the ones spelled out in the contract, they’ll typically be entitled to a (usually generous) severance package. But employment contracts often contain a provision allowing termination for harming the company’s reputation, and so the content and context of the speech will likely determine whether it is protected under the contract or not.
In Roseanne’s situation, sources say that Roseanne had a contract containing a morality clause allowing for termination should she make any statements of “public disrepute or humiliation, contempt, scandal or ridicule” that “insults or offends the community or any substantial group thereof.” If true, Roseanne may not be entitled to severance under her contract.
Next, the National Labor Relations Act protects the rights of employees to act collectively to improve their working conditions. The National Labor Relations Board, the agency tasked with enforcing the NLRA, has used the NLRA to protect employees who have turned to social media (and more traditional means of communication) to discuss or complain about working conditions or wages.
Additionally, public employees traditionally have a heightened right to free speech under the First Amendment in a way that does not apply to private employers.
In Pickering v. Board of Education, SCOTUS created a balancing test that remains in place, stating that “the interests of the [employee] as a citizen, in commenting on matters of public concern” must be balanced against “the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees.”
Thus, while a public employee’s right to free speech is heightened, it’s not inalienable.
When employee speech isn’t protected under one of these three limited exceptions, there are many justifications employers might have for terminating employees that espouse harmful or offensive views.
Primarily, companies seek to portray a certain brand and reputation, and affiliating with employees that act or speak contrary to the company’s values can damage that. For example, before ABC decided to cancel Roseanne’s show, Twitter roared with calls to boycott the network altogether.
In other settings, an employer could risk creating or endorsing a hostile work environment by retaining an employee that speaks in a harmful or offensive way to fellow employees.
A New Era of Free Speech in Employment Law?
States and local governments, however, have begun enacting statutes and ordinances protecting employees’ political speech and activity. These laws currently exist only in a minority of jurisdictions and vary in scope.
Some generally protect employees participating in “lawful off-duty conduct,” and others more specifically protect endorsement or affiliation with a political party.
Connecticut goes so far as to ban employment discrimination based on any “exercise of rights guaranteed by the First Amendment,” and courts have interpreted the statute to grant private employees the same rights to free speech that apply to public employees.
Some statutes provide exceptions for when the off-duty conduct or speech badly hurts morale or relationships with customers; others are silent on the topic. These laws will make it more difficult for employers to fire employees swiftly in retaliation of political involvement or speech.
There’s often a fuzzy line between “political speech” and speech that people may view as offensive or discriminatory. Courts have faced questions such as whether displaying a confederate flag or making statements about Muslims disproportionately being terrorists constitute political speech warranting protection by the statute in their jurisdiction (the former was considered political speech, and the latter was not).
Going forward, if more jurisdictions enact more speech-protecting legislation, employees’ right to free speech on charged political issues will be interpreted by courts in their respective jurisdictions. Employers will have to tread much more carefully if this trend continues.
Evan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)
