First Amendment Violation in Denying Private Employee Unemployment Compensation When He Was Fired for His Speech?

From a Magistrate Judge’s Report and Recommendation in Griffin v. N.H. Dep’t of Employment Security (handed down Nov. 16):

For six years prior to May 19, 2009, Griffin worked for the Hospital as a radiology technician. Prior to May 19, Griffin had a conversation with a patient in which he recounted a news story regarding the number of firearms purchases that had occurred in the first quarter of 2009. The patient complained about the conversation, and Linda Nestor, Director of the Radiology Department, contacted the patient on May 19 to investigate. The patient said that Griffin had made remarks about President Obama and had reported that he was stocking up on food and weapons. Nestor did not ask Griffin to provide his side of the story, concluding that she did not need to investigate further because Griffin had made inappropriate comments in the past.

Griffin was fired by the (private) hospital “for making inappropriate remarks to a patient about guns and politics,” and was then denied unemployment compensation by the government agency in charge of unemployment claims because he “was terminated for misconduct.”

Now it’s clear that Griffin’s firing doesn’t violate the First Amendment, because the hospital is a private entity, and thus not bound by the First (or Fourteenth) Amendment. But in a long and well-known line of cases, the Supreme Court held that when an employee is fired because he refuses to do something (e.g., work Saturdays) because of his religious beliefs, a denial of unemployment compensation on the grounds that the firing was “for misconduct” (there, insubordination) presumptively violates the Free Exercise Clause. I think this logic is dicey, but the Court has accepted.

I’ve often wondered whether the same logic would also apply to firings for speech, the subject of a parallel clause of the First Amendment. And in Griffin, the magistrate’s report says “yes”:

Griffin’s claim resembles those arising under the Free Exercise Clause of the First Amendment, involving employees terminated for religious practices conflicting with a private employer’s policy but not otherwise barred by law, who have successfully challenged administrative rulings or state laws denying them unemployment benefits. See, e.g., Hobbie v. Unemp. App. Com’n, 480 U.S. 136, 140-41 (1987) (denying unemployment benefits to Seventh-Day Adventist who was fired because she was unwilling to work on Saturdays impermissibly burdens free exercise of religion); cf. Employment Div. v. Smith, 494 U.S. 872, 890 (1990) (denying unemployment benefits to employees fired for their criminal misconduct in using peyote did not violate Free Exercise clause because state law criminalizing use of peyote passed constitutional muster). The Court has characterized these cases as standing for the proposition that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Employment Div., 494 U.S. at 884 (citation omitted). Lower courts have extended this line of authority to cover claims like Griffin’s asserting that the state violated the First Amendment when it determined that an employee fired for engaging in political speech at work was ineligible for unemployment benefits. See, e.g., De Grego v. Levine, 362 N.Y.S.2d 207, 208-09 (N.Y. App. Div. 1974) (First Amendment barred State from denying unemployment benefits to employee fired for wearing “Impeachment with Honor” button), aff’d on other grounds, 347 N.E.2d 611 (N.Y. 1976).

An interesting case. Note: If you want to offer legal analysis about the case, you should probably make sure you have read Sherbert v. Verner, the source of the Free Exercise Clause doctrine on which the Court relies; as applied to unemployment compensation, Sherbert survives Employment Division v. Smith‘s general holding that the Free Exercise Clause isn’t violated by religion-neutral laws of general applicability.