If you take the blue pill, this is probably what you think. It can't be done. The First Amendment stops at the employer's doorstep. You'll lose your job. Play it safe. Compromise.
But then you might be wrong.
Fear of losing one's job for criticizing one's boss or the company that one works for is inherent in current employment law in the U.S. While there are tentative protections for whistleblowers, there are none for employees who blog in their spare time.
This is what happens inside the Matrix.
The at-will doctrine, which still reigns supreme in the Untied States, means you could be fired for no reason at all," says Cliff Palefsky, a partner at McGuinn, Hillsman & Palefsky in San Francisco. "So even though most people believe we live in a country with a First Amendment, they don't understand it doesn't apply in the workplace the same way it would apply against the government."
If you're a blogger, as you probably already know, things are even worse.
Have a blog, lose your job?
Workers with Web logs are everywhere, and they're starting to make corporate America very nervous.
Of course, you could always adapt to the Matrix and
Blog Without Getting Fired.
A handful of bloggers have recently discovered that their labors of love may lead to unemployment. By some estimates, dozens of people have been fired for blogging, and the numbers are growing every day.
The really bad news is that in many cases, there is no legal means of redress if you've been fired for blogging. While your right to free speech is protected by the First Amendment, this protection does not shield you from the consequences of what you say. The First Amendment protects speech from being censored by the government; it does not regulate what private parties (such as most employers) do. In states with "at will" employment laws like California, employers can fire you at any time, for any reason. And no state has laws that specifically protect bloggers from discrimination, on the job or otherwise.
There is an indirect discussion of this in Harassment Law and Free Speech Doctrine by Prof. Eugene Volokh, UCLA Law School:
The Importance of Workplace Speech: Workplace speech is a critical part of our national public discourse. People spend more of their waking hours at work than anywhere else except (possibly) their homes. Much of most Americans' political speech happens in the workplace. The average American does not go to public demonstrations, or burn flags outside the Republican party convention, or write books, or go to political discussion groups. But the average American does talk about current affairs with his coworkers.
This is especially true of any issues that have to do with workplace: affirmative action hiring, the rights of women, union politics, and the like. If a policeman feels that women make bad police officers, the logical place for him to talk about it is at work; 85 likewise if someone wants to say that affirmative action "gives to less qualified minorities jobs that should belong to more qualified whites," which may certainly offend minority employees. 86 People who work for American heavy equipment manufacturers may often make intemperate comments about Japanese competitors. 87 Racially polarized union elections can easily produce offensive comments or leaflets.
The opportunity to speak outside work is thus a poor, and constitutionally inadequate, substitute for speech in the workplace. 88 The Court has consistently rejected this argument when content-based distinctions were involved, 89 and it is particularly untenable in this case, where the opportunities for an employee to communicate to his coworkers outside the workplace are theoretical at best. Telling an employee that he cannot talk politics to his coworkers at the office generally means that he cannot talk politics to them at all. 90
If arguing this view from the standpoint of Harassment Law or constitutional protections is long and arduous, you may want to try the red pill.
While many Americans seem to accept the inevitability that freedom of speech stops at the workplace door, there is no reason for this to happen. Apart from confidentiality agreements and spilling trade secrets, people should be free to say what they think about the way their companies - or the management of their companies - run the business that provides them a livelihood. Most importantly of all, why should employees be fired just for speaking their minds? It happens all the time.
How about legislation designed to fix this problem? Let's call it the American Handshake Act. Like its counterpart in the European Union, it would turn every job into a contractual relationship - just like the executives at the top! If such legislation were ever to be submitted to Congress, it would closely follow legal precedent set in the European Union. In the Netherlands where I live, for example, people cannot be fired for complaining about wrongdoing, sexual harassment or for criticizing their management's policies. In effect, Dutch law as an extension of the European Social Charter extends freedom of speech to the workplace.
This has come about through social legislation that defines employment contracts under labor or tenure law. When people are hired for a job, there is a trial period of three months during which a company can decide whether they want to employ a person under contract. The contractual element is a legal requirement. After a three-month trial period, companies are free not to hire the person, but if they do they must offer a contract for one year or longer. At the end of one year, the company must decide whether they want to employ the person in question permanently or terminate the relationship.
This is a legally binding contractual relationship. Companies can fire employees "for cause" -- i.e. incompetence, criminal activity, etc. -- as well as in situations where the long-term profitability of the company might be at stake without collective dismissals. But what they cannot do is fire people who complain about wrongdoing, sexual harassment, management policies, whistle-blowing or anything else that would be protected by free speech outside the workplace.
The current legal obstacles to such legislation in the US are the "at will" laws in certain states, which empower companies to fire people for any reason whatsoever, even though such employees perform their job duties satisfactorily.
While I realize that many will argue that tenure law (employment law in the USA) ties the hands of businesses and makes the labor market less flexible, there are good reasons to think that this is a sham argument, unsupported by objective facts. With proper tenure laws to protect employees, as in Europe, U.S. companies would be free to fire people "for cause" or, collectively, for profitability and continuity reasons. There seems to be no logical reason to fire people for speaking their minds, other than to exercise power over people's livelihoods -- and that is precisely what European tenure laws prohibit!
Power over a man's subsistence is power over his will. -- Alexander Hamilton
All right, progressives, it's time to stop asking "why" and start asking "why not". What will it be - the blue or the red pill?