- The First Amendment protects Americans’ free speech rights from being restricted by the government, not their employer.
- You don’t have a right to use your company’s computer system to publish your speech.
- “Freedom of speech is the right to freely express an opinion. It is most assuredly not the right to express an opinion with freedom from the consequences.”
- Even California’s pro-worker rules don’t appear to protect James Damore, the Google employee who annoyed his colleagues with an anti-diverity manifesto.
James Damore, the Google employee fired yesterday for publishing a 10-page anti-diversity manifesto, almost certainly has not had his First Amendment free speech rights infringed. If he sues Google — which Reuters reports he is considering — he will almost certainly lose, unless he can find a court willing to create a new free speech right for American workers.
This morning, the alt-right corners of the internet are rallying to Damore’s cause. He is a shining example of how the left bans certain conservative ideas and punishes people for trying to discuss them openly, they say. It is outrageous that someone can lose their job simply for disagreeing with the politics of their liberal employer, they wail. “I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behaviour, which is what my document does,” Damore told the New York Times.
The problem is that US labour law is well-settled in this area: In the vast majority of US states, employees have almost no rights to free speech at work.
Damore was likely employed in California, which has a law uniquely sympathetic to political rights for workers — but we’ll get to that later.
The First Amendment to the US Constitution prevents the government from restricting your speech. It doesn’t restrict your employer from controlling your speech when you are at work. As the government is not involved in this case, Damore is already on shaky ground if he files a lawsuit arguing a free speech case.
More importantly, Damore’s speech has not been restricted. He can continue to express his opinion. Indeed, his opinion has already been published far more widely than he can have hoped. His speech is on steroids right now! His legal problem is that he does not have a constitutional right to a job at Google. If he is an “at-will” employee — i.e. an ordinary employee not governed by a special contract, like a film star might have — then Google has every right to demand that he leave.
You can read a lengthy legal paper on this issue by Prof. Eugene Volokh, of the UCLA Law School, here. It can be summed up in one paragraph:
“Of course, employee speech can always be restricted by private employers, who are not bound by the First Amendment. This cannot, however, authorise greater restrictions by the government. A householder is entitled to kick out dinner guests who say certain things. A commercial landlord can refuse to rent to tenants who put up certain posters. A newspaper publisher can refuse to publish articles with which he disagrees. A private university may restrict what its faculty say in class, or even what its students say on campus. Speech on private property can generally be controlled by the private property owner.
As Google Site Reliability Manager Paul Cowan warned internally at Google — his posts were screengrabbed by Breitbart — “freedom of speech is the right to freely express an opinion. It is most assuredly not the right to express an opinion with freedom from the consequences.”
That’s the law, broadly, in most of the US states.
But California — where Google is based — is different. It has a law that is uniquely sympathetic to workers’ free speech rights. California Labour Code says:
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 or affiliations of employees.
1102. No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
That language probably sounds very inviting to Damore right now. Even so, he will have difficulty making a case. The language is primarily intended to protect California employees who are running for elected office, or supporting those who run for office, when they are not at work. It’s not really intended to protect any-and-all speech. The Shouse California Law Group takes cases from workers who believe they have been unfairly dismissed for exercising their free speech rights, and even their lawyers admit (emphasis added):
“Generally speaking, California’s political workplace retaliation law protects employees’ right to engage in political activity outside of work. So, for example, it would probably not be illegal under Labour Code 1101 and 1102 LC for an employer to restrict the ability of employees to engage in political discussions with clients or customers while at work, or to use the position provided by their job to promote political opinions that the employer does not support.”
Damore’s problem is that he used an internal Google mailing list owned by Google to disseminate his manifesto. Individuals do not have the right to use their employer’s resources to pay for their freedom of speech.
And then, as CEO Sundar Pichai’s memo makes clear, his manifesto became so internally disruptive that Pichai had to cancel part of his vacation in order to deal with the fallout. As Volokh once wrote for the Washington Post, the California test is whether Damore’s speech disrupted the legit business of his employer. Pichai’s memo describes a “very difficult few days” at the company that forced him to fly from a vacation in Africa and Europe back to California to fix the Damore problem. That would indicate that Damore’s speech was so disruptive it was handicapping Google’s completely unrelated work — building software. Indeed, the reports coming out of Google right now suggest that the internal reaction was so extreme that plenty of work hours were lost as employees got into flame wars over the manifesto.
In sum, Damore may have enough of a complaint to file a case, but that case — ultimately — won’t get very far unless the US Supreme Court is willing to adopt California law, widen it, and give all Americans a brand new right to use our bosses’ computers for any kind of political activity we want. Which, given the court’s 5-4 conservative majority, seems unlikely.
It is rare that conservatives argue for the rights of employers to be restricted when it comes to firing workers. They ought to tread very carefully with that insistence. Such a right would give every communist, every member of the KKK, and every Hillary Clinton voter, an equal right to fill up their internal workplace bulletin boards with propaganda of their pleasing.
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