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Fired for Blogging? -- California, Louisiana, and South Carolina:

Say that you blog your views about race relations, the Iraq war, or President Bush. Your boss doesn’t like it; he might think that this speech might alienate coworkers or customers, or he might just disapprove of the speech and therefore of you. May he discipline you, or require you to take down the blog?

Well, say that you are in California, Louisiana, or South Carolina, where the law provides:

Cal. Labor Code § 1101: No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities.

Cal. Labor Code § 1102: No employer shall ... attempt to coerce or influence his employees through or by means of threat of discharge ... to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

La. Rev. Stat. § 23:961: [N]o employer having regularly in his employ twenty or more employees shall make … or enforce any ... policy ... preventing any of his employees from ... participating in politics, or from becoming a candidate for public office … [nor] adopt or enforce any ... policy which will ... tend to control or direct the political activities or affiliations of his employees, nor ... attempt to coerce or influence any of his employees by means of threats of ... loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character....

S.C. Code Ann. § 16-17-560: Whoever shall … [discharge from employment] any citizen because of political opinions or the exercise of political rights and privileges guaranteed to every citizen of the United States by the Constitution … thereof ... shall be guilty of a misdemeanor [and subject to civil liability]….

1. The first question you (and your boss) need to ask is: What do “political activities” mean? Is the protection limited to electoral politics, in the sense of participation in political campaigns? If so, your speech probably wouldn’t qualify, unless it’s tied to an active campaign. Or does it cover political speech more broadly, which includes a wide range of commentary about public policy and legislation, as well as about campaigns? Well, it’s hard to tell for sure. Some jurisdictions -- Seattle, Madison, and Champaign -- ban discrimination based on political ideology, beliefs, or affiliation, and expressly define those terms broadly, for instance to include “conduct, reasonably related to … any idea or belief … relating to the purpose, conduct, organization, function or basis of government and related institutions and activities.” But the laws that I describe include no such definitions.

California courts, it turns out, have interpreted “political activities” to include any “espousal of a candidate or a cause,” including broad social movements such as the gay rights movement. Under this definition, the cause of ending the war, of criticizing the President, or of protecting whites against the alleged depredations of other races, would all qualify.

A federal trial court applying South Carolina law, on the other hand, took a different view, limiting “political rights and privileges” to “matters directly related to the executive, legislative, and administrative branches of Government, such as political party affiliation, political campaign contributions, and the right to vote”; displaying the Confederate flag, the federal court said, isn’t included. How will higher courts interpreting South Carolina law and Louisiana law decide this? Hard to tell for sure.

2. A second question: What if your speech undermines the employer’s business, either because it criticizes the employer, or because it’s controversial and makes coworkers and customers angry?

Read literally, the California, Louisiana, and South Carolina statutes have no exceptions for such situations. A Louisiana appellate court actually specifically held that the Louisiana law protects employee speech even when it alienates customers, thus makes the employee “a detriment to his employer.” (A federal district court interpreting California law, suggested that there is an implicit exception “when the employee’s political activities are patently in conflict with the employer’s interests,” citing a California appellate court case on the subject; but it turns out that the cited case doesn’t really support that proposition.) I can certainly see why a court would be tempted to infer an exception from the law, especially by analogy to the rule that government employee speech loses its First Amendment protection when it sufficiently interferes with the employer’s business. But I can also see a court reading the statute literally, as categorically protecting employee speech, just as the Louisiana court did.

3. Finally, you have to pay attention to the specific text of each statute -- but also to the precedents in your jurisdiction (and perhaps in other jurisdictions) that may often depart quite a bit from the text. For instance, the California law applies just to employees, but the California Supreme Court has interpreted the law as prohibiting discrimination against applicants for employment. Likewise, though some of the statutes might be read as applying only to discipline pursuant to an express “policy,” a Louisiana appellate court has concluded (sensibly, I think), that “the actual firing of one employee for political activity constitutes for the remaining employees both a policy [prohibiting the activity] and a threat of similar firings.”

So that’s one kind of statute; in the next few days, I’ll blog about some other kinds. Those who want more details, including more excerpts from the statutory text, and citations to various cases, can find them here.

Related Posts (on one page):

  1. Fired for Blogging? -- California, Louisiana, and South Carolina:
  2. Fired for Blogging? -- Extraconstitutional Speech Protections:
Anderson (mail) (www):
Shouldn't there be a rather prominent disclaimer on each post in this series?
5.2.2006 4:16pm
SteveW:
Remember the woman who was fired in 2004 by a private employer in Alabama for refusing to remove a Kerry bumper sticker from her car?

Here is an article that reminds us of that incident and a few others: http://www.slate.com/id/2106714

I think the employer apologized and offered to rehire her after the incident became national news, but most people at the time concluded that the employer had broken no laws.
5.2.2006 4:32pm
uh clem (mail):
Maybe I'm not reading the statutes closely enough, but where is the dilineation of the difference between off-the-clock activities and on-the-clock activities? For instance, it's one thing for an employee to be fired from McDonalds for attending a rally supporting veganism on his day off, it's quite another for the same employee to be fired for refusing to serve meat or slipping a PETA flyer into every order.

Now, this on/off the clock differentiation doesn't have the same bright lines when it comes to professionals, espicially in the marketing field. For instance, nobody really expects that Tony Snow should be allowed to spout off his own opinions in the off hours without facing the consequences.
5.2.2006 4:49pm
ShelbyC:
Applying these statutes to newspapers as employers would raise interesting 1st Amendment issues. Anyone know if that's ever been tried?
5.2.2006 5:03pm
Eugene Volokh (www):
ShelbyC: Yes, see Nelson v. McClatchy Newspapers, a Washington Supreme Court case from the 1990s that upholds a newspaper's First Amendment defense in such a situation; as I mentioned, I'll blog more about this later.
5.2.2006 5:14pm
Sue D'Onymous:
As long as we're on the general subject, maybe someone can explain why the Hatch Act -- which bars numerous federal employees from engaging in core political speech, such as handing out leaflets in support of a political candidate, even on their own time off government premises -- is constitutional.

Hint: Please don't claim that it's necessary to protect such employees from the marauding influence of the political appointees above them in the workplace. If coerced partisan activity needs to be suppressed, then simply make it illegal to engage in such coercion. The government doesn't have to substantially impair the lower-level employee's political speech rights. (Constitutionally speaking: improper tailoring. Colloquially speaking: duh.)
5.2.2006 5:19pm
msk (mail):
What about a junior high Social Studies teacher who is a PETA activist and makes it a classroom assignment for the 100 children she teaches each day (average age 13) to join her in a letter-writing campaign aimed at pressuring officials in a distant state to close down an animal park? (Distant state so the teacher is the only source of any "facts" presented to the students. Real incident; no court case or outcry.)

Consider this in light of changes within the last five years, such as:

-- Most schools have computers enabling students to send email.

-- Most members of Congress prefer emails now to any other form of communication from constituents. Some warn on their web pages that real letters often are lost entirely or delayed several weeks for security measures. And it may be awkward to deliver opinions or suggestions to Congress only via newspaper ads.

-- Most "send me your views" set-ups on congressional and govt agency websites never ask for any indication of the writer's age or circumstances. (Should they? and wouldn't their ideas about categorizing "people worth listening to" be fruitful ground for arguments?)

We're a long way from mailbags. Emails show no handwriting, paper quality, individual envelopes, etc. that might indicate group activity vs. free expression -- not that those would be polar opposites. Emails increase the chance that anyone with a list of student passwords -- or employee, or club, or any other passwords --could send 100 emails that only appear to be the opinions of 100 different individuals.

It should make a difference if the recipient of "public opinion" knows whether it was a genuine groundswell or an easily faked tally of pros/cons on a hot issue.

Student letter-writing projects can be valuable education and are a natural part of public discussions.

Ethical guidelines for teachers (and some practical steps for public officials evaluating the letters) may need considerable updating in light of new technology and the possibilities for fraud.

Wisdom out of the mouths of babes, yes. Out of the mouths of recording devices -- the modern listener needs the ability to make a distinction.
5.3.2006 1:00pm