pageok
pageok
pageok
Fired for Blogging? -- Extraconstitutional Speech Protections:

People have often asked: May a private (nongovernmental) employer fire an employee for blogging things that the employer dislikes?

The First Amendment answer, of course, is that the First Amendment doesn't apply to actions by private employers. Contrary to what some believe, that's true even when the private employer receives substantial government subsidies. Government pressure on a private employer to fire an employee based on the employee's speech may violate the First Amendment. But the private employer's independent decision to fire the employee does not violate the First Amendment, even if the employer is subsidized by the government.

But there's more to the law of speech restrictions than the First Amendment. There are also what I call extraconstitutional speech protections -- protections, secured by state or federal statutes, state constitutions, or state or federal judge-made common law rules -- that go beyond what the First Amendment requires.

Some extraconstitutional speech protections protect people against government-imposed speech restrictions, even restrictions that don't violate the First Amendment. State journalist's privilege statutes are an example. Another is libel retraction laws, which reduce a defendant's libel liability (even liability that is otherwise constitutionally valid). Another is 47 U.S.C. § 230, the statute that immunizes (among other things) Internet service providers from liability for what users say, and bloggers from liability for what commenters say. Other examples are anti-SLAPP statutes, and the media exemption from campaign finance laws.

But other protections, which are often more controversial but still quite important, protect people against private retaliation for speech. A California statute, for instance, often bars private universities and most private high schools from disciplining students for their speech. In some states, owners of private shopping malls are restricted from evicting members of the public who are leafleting, gathering initiative petitions, and the like.

And it turns out that several jurisdictions -- California, Colorado, Connecticut, D.C., Louisiana, New York, North Dakota, Puerto Rico, South Carolina, Washington, Seattle, Madison, Urbana, and possibly Illinois, Montana, Nevada, North Carolina, Pennsylvania, and Wisconsin -- limit private employers' ability to fire employees based on the employee's speech.

The limitations don't provide the same protection that people enjoy with respect to government action. Just because you can wear a "Fuck the Draft" jacket on the street without being prosecuted doesn't mean that you can wear it to work without being fired (even in the jurisdictions I mentioned). You might even be punishable under some circumstances for wearing it outside work. But the protections are substantial, and important, both for employees and for employers. These laws may be criticized, both on libertarian and pragmatic grounds; I hope to post later some thoughts on the policy arguments for and against these laws. Nonetheless, they are the law in their jurisdictions, and are worth discussing whether one agrees with them or not.

Over the next several days, I'm hoping to put up a bunch of posts about various such statutes, and various problems the statutes raise.

Related Posts (on one page):

  1. Fired for Blogging? -- California, Louisiana, and South Carolina:
  2. Fired for Blogging? -- Extraconstitutional Speech Protections:
Joshua (www):
Have any of these supplementary free-speech statutes ever had to withstand a challenge to their constitutionality (on account of the legislatures in question overstepping their authority in enacting them, a la the ill-fated Freedom of Religion Act)?
5.2.2006 2:48pm
Joshua (www):
Correction: The act I'm referring to is actually the Religious Freedom Restoration Act (link includes an entry on the challenge to it).
5.2.2006 2:51pm
M. Lederman (mail):
Eugene: I assume you're aware of the Eule/Varat piece on this. Transporting First Amendment Norms to the Private Sector: With Every Wish There Comes a Curse, 45 UCLA L. Rev. 1537 (1998). IMHO, at least the first half of it (the portion with Eule's obvious style and grace) is one of the best First Amendment articles in recent years.
5.2.2006 3:03pm
CEB:

[...]libel retraction laws, which reduce a defendant's libel liability (even liability that is otherwise constitutionally valid). Another is 47 U.S.C. ยง 230, the statute that immunizes (among other things) Internet service providers from liability for what users say, and bloggers from liability for what commenters say.


If a blog or website is accessible by a computer user in England, does that confer jurisdiction, so that an individual or company be sued for libel in British court, where speech protections are weaker? If so, are there any legal protections given to American citizens or corporations?
5.2.2006 3:09pm
Bruce:
CEB, for an Australian case on this, see Dow Jones &Co. v. Gutnick, 194 A.L.R. 433 (Austl. Dec. 10, 2002). (There are British cases on this issue too, but I don't recall them off the top of my head.) Short answer: maybe, and no.
5.2.2006 3:18pm
Bruce:
Oops bad link. See here for Gutnick.
5.2.2006 3:20pm
Eugene Volokh (www):
Joshua: The federal Religious Freedom Restoration Act was struck down -- as applied to states -- on the grounds that it exceeded the enumerated powers possessed to Congress. State laws that govern employers within the state aren't vulnerable to that sort of attack. In some situations, the laws may violate the First Amendment when they interfere with the employer's own speech, for instance when the employer is a newspaper that's trying to implement a no-politicking rule for its reporters (more on that case later). But as a general matter, the laws are constitutional.

Marty: Yes, the Eule &Varat piece is very good.
5.2.2006 3:39pm