Free speech is not a defense against firing

[The Straight Story]

Free speech is not a defense against firing

Having been a half-baked journalist for most of my adult life I have great regard for the First Amendment. However, I agree with my wife that it shouldn’t be used to shield people from all the consequences of shooting off their mouths. For example, I don’t see where the guys who wrote the Constitution meant to stop anybody from firing an employee whose stupid palaver is damaging to the business.

I don’t bring this up out of thin air. A while back we heard from a professor who insists that the American victims of 9-11 were Nazis and deserved to be killed, then from an Ivy League university president who questioned publicly whether women are genetically up to things involving science or mathematics.

I’m not an expert on much of anything but I’m pretty sure that both of these blowhards are talking through their hats. However, I think the First Amendment means only that they shouldn’t go to jail for it. I don’t think it means they can’t be fired. In both cases I think their comments make it clear they are in over their heads in their present employment and it should never be against the law to replace people who aren’t doing their jobs properly. Since I write this stuff in advance, one or both of these buffoons may be at the unemployment office as you read this. If so, who do I call with my congratulations?

http://www.tehachapinews.com/columns.html

[etherealtruth]

1. Exactly ...

I have the "right" to say what I need to say, with that comes the responsibility to accept societal consequences for what I've said.
Wish I was always able to think that through each and every time I opened my mouth, though.

[K-W]

3. Social consequences?

You mean someone who disagrees with you and happens to control your employment.

You think those are just consequences? Employers get to use thier control over your ability to live and feed your family to control your speech? When do I get to punish a rich person for his speech by taking the food off his families table?

[etherealtruth]

8. Well ...

What if I worked for a Ford car dealership and extolled the virtues of Toyotas (in areas where customers are) while at work? It's an overly simplistic example but I think any employer would be quite justified in firing me ... (My "speech" is reflecting poorly on my place of employment)

OK, I work at the same dealership and the owner is a staunch Republican ... lets say I walk around work promoting a Democratic candidate ... I still think it is with in her right to insist that I stop or to fire me ... My qualifier is WHILE AT WOTK. What if I spew some right wing fundie "stuff" at the park and my kids are shunned by the other mothers and their kids?

My third scenario is the same as the latter except that I do my politicking outside of work? If I am engaging in a legal activity outside of work I DO BELIEVE I have that right.

We all suffer the consequences or reap the rewards by how we are perceived by others.

[K-W]

9. That is a completely different issue.

If you work for a Ford dealership and you extoll the virtues of Toyotas you should be fired for not doing your job. It has nothing to do with free speech.

If you walk around at work campaigning for politicians and not selling cars, you are again, not doing your job and should be terminated for not doing your job.

These scenarios have nothing to do with the freedom of speech.

This is about whether employers control what thier employees get to say outside of the time where they are contractually obligated to do thier jobs for them.

[etherealtruth]

15. "Freedom Of speech" refers to government control

"This is about whether employers control what their employees get to say outside of the time where they are contractually obligated to do their jobs for them."

It is not an employers business what legal activities an employee engages in outside of work (unless prohibited by contract or agreement).

On this we agree. The issue raised was one of the limits of free speech while fulfilling employment obligations...

Going with the examples you gave then Harvard SHOULD have fired the guy as his job is to educate both genders with out bias

I could very well express my political views and still carry out my professional duties ... What if I chose to express my religious beliefs ...

[K-W]

16. That isnt even remotely true.

Freedom of speech. As the words clearly imply refers to the freedom to speak. That every person has the right to speak freely, ie without retribution.

The first ammendment garuntees that the government shall not abridge the freedom. It garuntees that government power will not be used to silence. The first ammendment is not the freedom of speech, it is a protection of the freedom of speech.

And this is not about what people do on the job, that is a distraction argument.

Harvard should not have fired him, please dont mistake my argument and make assumptions. Simply suggesting there is a gender difference in academic ability in no way intereferes with his job. You would have to prove that he was, in his position, descriminating against women.

This is all fairly straightforward if you read the enlightenment philosophies that describe the concept of rights and freedoms. The destinction between speech and action is vital. If you are failing to do your job while speaking, you can be fired, you cannot be fired simply for speaking.

Free speech means people can speak freely. It doesnt just mean they can speak free of the government.

[etherealtruth]

18. You are correct ...

I have not done much "enlightened philosophy" reading. I have spent far too much time balancing equations ...

That does not change the fact that I believe that once words are uttered they have an impact on those around them.

I do believe that there are limits in PRIVATE forums. You may say what you like on the street ... but not in my private space, which may be my car dealership, or my clinic...

I understand your argument related to proving that "actual" damage was done by the guy from Harvard ... I think we (as a society) have pr oven that actual damage IS done by statements such as this --- if we substitute an ethnic group or a race in place of "women," to some it does become clearer. (Not suggesting that it would make a difference to you, but to some it would).

[tabasco]

24. The First Amendment is not implicated unless there is ...

government action which is supressinmg speech. It has nothing to do with people being fired by private employers.

[Solomon]

28. Bingo! You win the prize. It has to be government action in some

form or fashion. With respect to colleges, they get a lot of federal funding, so they fall into that category under some circumstances.

[DBoon]

22. Translated - "Shut up or you will get fired"

doesn't sound very free to me.

That's one of the reasons we vote with secret ballots - so employers can't retaliate against employee who vote "the wrong way"

[K-W]

2. Then the author doesnt support free speech.

And the professor didnt insist that anyone was a nazi, that is a lie, and he worked for the government, so he was protected by the constitution.

The first ammendment does only apply to the government, but the first ammendment isnt the freedom of speech, it is a restriction on government meant to protect the freedom of speech. What the author is suggesting is that it is ok to make an end run around that protection by having citizens with power abuse thier control over other peoples livelyhoods to silence them.

The freedom of speech means as citizens we respect each others right to speak freely.

"owever, I agree with my wife that it shouldn’t be used to shield people from all the consequences of shooting off their mouths."

Actually, the freedom of speech is meant to do precisely that, it is meant to shield people from facing consequences from expressing even the most abhorant opinion. Because if there are consequences for speech, and those consequences are controlled by other people, we have tyranny.

[The Straight Story]

4. Well,

I was not suggesting anything, just found it to be an interesting article worth discussing :)

[K-W]

5. Ah, it reads very much like you wrote it.

I will edit my post.

[Orangepeel]

6. respectable Universities support academic freedom

and academics who promote controversial ideas shouldn't be fired. Legally, a University can do so, unless the University's faculty contract protects academic freedom (which it often does). But they still shouldn't.

Ridiculous ideas should be ridiculed, and an academic who whose work is not respected by his/her peers shouldn't be running the university. But it is a slippery slope when the general public gets to decide that defending a controversial viewpoint amounts to talking out of one's hat and/or that a scholar is out of their depth.

[etherealtruth]

11. I agree with the University example ...

... Universities SHOULD be encouraging free and spirited thought (speech).

I am trying to figure out where "we" draw the line --- I would fire a Nanny/babysitter who spouted right wing propaganda ... to my children.

I would fire an employee who's speech offended or upset customers or coworkers ... Should a right wing fundie wait person be able to proselytize to me throughout my meal?

I like to be consistent so I am truly looking for discussion on where we draw the line.

[K-W]

13. This isn't about speech on the clock that directly interferes with work.

If your speech is interfering with you doing the job your are paid to do, certainly your employer can fire you. You have violated the contract between you and your employer that you work and he pays you.

This is about whether an employer can fire someone only for speech, which certainly isnt against the first ammendment, but DOES in fact interfere with the freedom of speech.

[Orangepeel]

17. both examples in the OP were about academics

so that's how I replied.

It isn't as clear in other cases. As K-W points out, speech "on the clock" that interferes with the the job is certainly grounds for firing.

But should an employer "get" to fire an employee who acts professionally on the job but who advocates unsavory political ideas on their own time?

Ethically, I think that's a lousy thing to do, unless those ideas are likely to hurt your business in some way (for example, if customers find out you have a nazi or a child pornographer working for you, that might hurt your business). But legally, I believe that in many cases, an employer can fire an employee for pretty much anything, unless it is for some "protected" reason, like race or religion.

A simple solution to the whole "problem" is an employee union who negotiates protection for employees against firing without cause.

[etherealtruth]

19. My point was both Prof's were executing their duties ...

... their contracts probably do not allow termination for their view points --- I think such contracts ARE good ideas especially in academia.

My posts clearly point to speech on the job (the Prof's were "on the job" ... most industries do not have protective contracts ) --- MY point is: what we say at "work" impacts our work or our work environment. Employers may control the environment there.

Outside of work, participation in any LEGAL activity should not have any impact on employment----this is NOT a shift in my position.

[Orangepeel]

20. I'm sorry. I don't know if we agree or disagree.

:shrug:

My point was that academia should have different standards about the promotion of controversial, even inflammatory, ideas than the restaurant or child care industries.

Legally, each University may have the right to fire each of the professors in question for saying stupid things "on the job." I suppose that would depend on their respective contracts. However, it is my opinion that no university deserving of calling itself a university would do so. Universities deserving of calling themselves universities foster and protect academic freedom.

Of course, the University might relieve someone who makes a public spectacle of him or herself from administrative duties. That's a completely different issue, IMO.

[etherealtruth]

25. Actually we do agree (I think) ...

I was addressing the general issue of "free speech" in the work place (initially) and you were addressing the issue in academia (initially)-----academia IS a special circumstance.

In the end we both stated the same opinions...

[iamtechus]

7. Universities are not "businesses".

[PowerToThePeople]

10. Bill Mead is an idiot

Hope his boss fires him for for rooting for his favorite sports team (that the boss hates) in the breakroom.

[ConsAreLiars]

12. Free speech is not a justification for firing - except under fascism

Your columnist's wish to see these academics fired for their words is a a common one among those promoting fascism. Restricting and suppressing dissenting views is their hallmark. They've been quite busy doing this on a variety of fronts, as you might have noticed, and this is just one more instance.

Join them if you wish, I prefer a real democracy.

[K-W]

14. Its funny how many 'liberals' say they support free speech

but see no ethical problem with silencing people whos opinions they find objectionable.

[0rganism]

23. Really? How many?

Go ahead, lay it on me, I could use a belly laugh tonight.

I've seen the exact sentiment you describe coming from the mouths, pens, and keyboards of rightwingers on a regular basis. I remember a certain Press Secretary calling out the general population, "Watch what you do, watch what you say."

And I see nothing funny about it whatsoever. No, nothing funny at all.

[sweetheart]

21. Thats an Interesting twist on the first amendment... a republican one.

Perhaps free speech was intended as universal by the framers, and not
just in free speech zones. The corporate powers have become too great,
that there is no due process in this "firing" of which you speak.

I've been fired for people making wrong accusations, and without any
due process, simply fired... so we are to have no economic rights,
outside of being a flexible labour force to be dicked around at will
by the boss of the day?

I find the worst abuses of "speech" in businesses come from email, and
voicemail and memos, places where people do not have to speak face to
face, and they make errors of speech judgement that cause problems and
sometimes firing. My solution in work, is to not use email for any
communications except technical stuff.

But that is really besides the point. People in work can be abusive
and use "speech" as a weapon, and the person who gets fired is not
necessarily the "abuser" as there is no due process. So you are
actually speaking with a very republican position there, that you
don't believe we should have any economic due process, that the
constitution was only for nights and weekends.

I couldn't disagree more. The corporatocracy has gone too far, and
even our nights and weekends have their liberties threatened. You
can take a holiday in holland, smoke some cannabis where it is legal,
return to work, be drugs tested and fired for breaking no law, just
because the cannabinoids are still in your blood days later.

In a fair society, there should be checks and balances on the abuse
of power, even in "your" company, as it is indeed the employee's job
and life you're dicking with when you fire them, and they do have
rights in a civil world. It should not be on their onus to hire
a lawyer and be forced to prove illegal firing. Rather they should
have easy access to fair justice in areas of civil rights, even in
the workplace.

[Singleterri]

27. All the Constitution says

is that Congress may not make any laws against freedom of speech. It doesn't say that you have a right to not be fired from your job if you use your position as a professor to advocate the hate and destruction of America.

[sweetheart]

29. The freedom of thought and conscience

THe job of a professor is to ascertain, perserve and teach "what is
knowledge". This means asking and questioning all systems of orthodoxy
including the orthodoxy around 9/11 and elsewhere. It is hardly an
abuse of free speech. I presume you're on about a professor who wrote
an essay from colorado if i recall. I read that essay, and he did not
advocate "hate and destruction of america". Those are your words.

The fact is, america deserved 9/11 for so many even uglier terrorist
crimes by americans overseas. And if it takes more 9/11's for americans
to grow up and realize there are repurcussions to being a mass murdering
bunch of evil bastards, then it is karma and natural justice... not
hatred of america. One need merely observe the terrible imbalance of
repression the US has come to stand for, of corporate rule over all
systems of the bill of rights.

The corporate congress has made laws that pit the corporations, the
state and the police against the rights of the citizens. It is the
ultimate perversion of the constitution, and it is unsuprising that
republican voices stand up for it.

[xchrom]

26. speech is regulated in all kinds of circumstances.

so i don't get the point of this.

you can't sexually harrass someone on the job with your speech.

there are politically explosive things you can say just about anywhere that will land you in hot water.

this ''freedom of speech'' thing is a kind of canard.

however -- mostly -- you can express whatever political notion you want -- and as long as you do your job there should be no reaction.
life is life and people say things on the job, off the job, on the phone whatever that we don't like to hear.

the employer, like the rest of us, is obligated to exercise self control.