Employers Shouldn’t Be Able To Fire Employees Because They Angered The President

In defense of Juli Briskman

Ed. note: This op-ed is from Cameron Kistler, Counsel at Protect Democracy, in response to our post about Juli Briskman, the biker who flipped off the Trump motorcade.

Last week, Elie Mystal applauded a Virginia trial court’s decision to dismiss a wrongful termination lawsuit brought by Juli Briskman against her former employer, Akima LLC.  I, along with the Geller Law Group, represent Ms. Briskman in her lawsuit against Akima.  Akima forced Ms. Briskman to resign after a photo of Ms. Briskman flipping off the presidential motorcade went viral.  Ms. Briskman was off-duty at the time, and nothing in the photograph linked her to Akima. She sued because it’s clear that Akima’s rationale for the termination — the supposed obscenity of the middle-finger — was a phony pretext; she lost her job because Akima felt the need to protect itself from the possibility of retaliation by the federal government — retaliation that itself would be unlawful.

Elie’s piece emphasized that freedom of speech doesn’t mean freedom from consequences and noted that racial minorities have long faced consequences far beyond job loss for exercising their rights to free speech.  He is correct.

That doesn’t, however, mean that it should be legal for employers to fire employees because employers are afraid that the government might act illegally.  Permitting employers to terminate employees out of fear of illegal governmental retaliation undermines key constitutional goals and has potentially dangerous implications for our democracy — implications that, as Elie’s historical observations suggest, are likely to fall on minority groups disproportionately.

Employers shouldn’t have anything to fear from the government as a result of off-duty political speech.  It’s unconstitutional for the government to retaliate against a contractor for the off-duty political speech of the contractor’s employees.  It’s also unconstitutional for the government to leverage the threat of regulatory sanctions to silence speech.  Both of those rules help to ensure that the government cannot use either political power or the public fisc to ensure political loyalty.  

But if employers terminate employees out of fear that the government might act unconstitutionally, the government is able to accomplish indirectly what it cannot accomplish directly.  And President Trump’s tactics — with repeated attacks against everyone from NFL owners to disfavored media companies — show that he’s trying to weaponize that potential constitutional loophole to silence the speech of his political opponents.

Employment law can help ensure that the potential loophole remains firmly closed.  Over 40 states, including Virginia, recognize that the employment-at-will doctrine doesn’t allow an employer to terminate an employee in violation of a state public policy.  And when companies terminate employees out of fear of unlawful government retaliation, it imperils the core public policy — Americans should be able to protest the government without having to fear the effects of unlawful government retaliation — protected by the First Amendment.  So, state employment law should recognize that it violates state public policy to fire employees out of fear of illegal governmental retaliation.  

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That’s the argument that Ms. Briskman is making in her lawsuit — not, as Elie suggests, that workplace speech protections should extend to the full breadth of the First Amendment.  And by focusing only on terminations motivated by fear of illegal governmental retaliation, Ms. Briskman’s lawsuit offers no safe haven for white supremacists.  Companies don’t fire white supremacists out of fear of illegal government retaliation (they’re “very fine people” according to the president, remember).  Companies fire them for any number of other legitimate reasons — including a reasonable fear of legitimate Title VII liability.

Moreover, our democracy will be in profound danger if we turn a blind eye to the danger created by private sector capitulations to perceived presidential whims.  As Professor Sheri Berman — an expert on democratic development at Barnard College and a member of Protect Democracy’s Board of Advisors — has observed, “Autocrats in the twenty-first century do not need to rely on the heavy hand of the censor or the knock of the secret police to silence dissenters.”  Instead, they pursue a more insidious (and effective) strategy to silence opponents: they use “a combination of nepotism to reward support and economic coercion to punish dissent.”  That way employers can do a regime’s dirty work for it, out of sight and out of mind.

At Protect Democracy, we’ve termed this process “autocratic capture.” Autocratic capture dismantles a democracy from within by forcing employers to do the government’s bidding out of fear of retaliation.  A robust private sector is one of the most powerful counterweights to a potential autocrat as Elie correctly pointed out. But if the private sector can be autocratically captured, the check is not just removed — it becomes an enabler of a too-powerful executive.  And once businesses feel compelled to bind themselves to the presidency, their incentive come election time is to keep their benefactor in power.  We must all agree to stop it now, before it’s too late.


Cameron Kistler is serves as Counsel at Protect Democracy.

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