Employee Free Speech in the Workplace: Using the First Amendment as Public Policy for Wrongful Discharge Actions

43 Pages Posted: 1 May 2011

See all articles by Lisa Blomgren Amsler (formerly Bingham)

Lisa Blomgren Amsler (formerly Bingham)

Indiana University Bloomington - School of Public & Environmental Affairs (SPEA); University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: August 30, 1993

Abstract

A private-sector employer in the United States may fire an employee for the employee's political views. During the 1992 presidential campaign, employers required that employees sit through a presidential candidate's stump speech as part of a company-wide captive audience. Employees commented to reporters that they did not feel free to leave. Employees are increasingly experiencing pressure to support the political candidate or cause that the employer believes best serves the corporate interest. This Article examines this trend and suggests a framework for a private legal remedy when the employer crosses the boundary from influence to coercion by dismissing an employee in retaliation for that employee's exercise of the right to free speech. First, the Article addresses how the problem has evolved and the traditional reluctance of courts to protect employees' political activities from employer retaliation. Second, the Article discusses policy reasons why state courts should use the First Amendment in wrongful discharge actions to protect employee political speech and discusses the results of a survey on employer influence upon employee political activities. Third, it addresses the constitutional issue implicit in courts' condoning employer conduct that infringes upon employee free speech rights. Specifically, in the common law tort of wrongful discharge, state courts have created a classification based on the content of a private-sector employee's speech. State courts do recognize a cause of action when an employee speaks out on violations of law or when the employee claims benefits to which she is legally entitled but do not recognize a cause of action when an employee engages in political speech outside the workplace. This classification disadvantages political speech, the category of speech courts traditionally give the highest protection in First Amendment jurisprudence. State courts engage in state action within the reach of the Constitution by creating this classification. Courts may avoid the constitutional problem by using the First Amendment as the basis for a wrongful discharge claim. Finally, this Article examines the limits of this new remedy, which can be drawn from analogous public-sector cases. Courts should move to recognize the tort of wrongful discharge in instances when an employer retaliates against an employee for nondisruptive political speech.

Suggested Citation

Amsler, Lisa Blomgren, Employee Free Speech in the Workplace: Using the First Amendment as Public Policy for Wrongful Discharge Actions (August 30, 1993). Ohio State Law Journal, Vol. 55, p. 341, 1994; Indiana University, Bloomington School of Public & Environmental Affairs Research Paper No. 2011-05-01. Available at SSRN: https://ssrn.com/abstract=1827248

Lisa Blomgren Amsler (Contact Author)

Indiana University Bloomington - School of Public & Environmental Affairs (SPEA) ( email )

1315 East Tenth Street
Rm. 333
Bloomington, IN 47405
United States

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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