Tennessee employers could use more restraint, less impulse in First Amendment matters

Eighteen years ago I wrote a book on employment and the First Amendment subtitled “The Erosion of Free Expression in the American Workplace.” It was early days for social media but blogs had become mainstream, and the book mentioned some early examples of people getting in trouble at work or losing their jobs because of their off-work blogging. 

At the time Facebook was young but rapidly expanding, Twitter was just starting to catch on, and Instagram hadn’t yet launched. I recall being asked in interviews: “This is all pretty alarming — somebody fired for what they write in a blog — but does it really ever happen beyond isolated examples?” I replied that it’s uncommon but surmised that expanding social media makes it plausible we’ll see more of it. 

In the years since, we have indeed run across plenty more examples , but the blizzard in the wake of Charlie Kirk’s death takes it to a whole new level. What in recent years might amount to an occasional news item about someone’s occupationally perilous expressive choice has this month morphed into a mass right-wing parade of zealotry (with the vice president as grand marshal) marching to trample on the reputations and livelihoods of anyone who is disinclined to venerate Charlie Kirk as a cross between Martin Luther King and Jesus Christ, and willing to share that reluctance publicly. 

Let’s be clear up front that freedom of speech does not entitle you to keep your job no matter what nugget of genius you choose to broadcast in your off hours. Ken Paulson, who heads Middle Tennessee State University’s Free Speech Center, puts it aptly and succinctly: “The First Amendment is not always on your side when you are raging at the world.” 

If you’re an at-will employee in the private sector, your work-related free speech protections are near nil (though some things like labor organizing and whistleblowing have protections). Your boss may be an idiot when you are fired for righteous declarations that you like the Mets and hate the Yankees but not a legally imperiled idiot. In public sector work, on the other hand, you are entitled to speak out on matters of public concern without fearing for your job — unless your employer can make a legitimate claim (read: persuade a jury, if it comes to that) that your speech compromises workplace harmony or operational efficiency. 

Importantly, compromising harmony or efficiency does not —and should not — equate to offending the boss’s political or parochial sensibilities. Workers should not be canned merely because in their off hours they have provocative or controversial things to say on social media or in other public settings. Freedom of speech means the freedom to be not just provocative but also the freedom to be stupid, insensitive, distasteful, callous, disagreeable, unsympathetic, remorseless and even hateful on your own time and on your own dime. 

Are there cases where an employer can credibly claim that awful speech aired in public does make it impossible for the person to do their job or the workplace to function? Sure, but as a court decision in a Memphis case a few years ago involving a public utility worker’s racist social media reminded us, mere speculation of virality or social backlash without proof isn’t enough.

Even in the private sector employers would do well to choose restraint over impulse. And they would do extra well to remind themselves that they own part of their employees’ days, not the whole of their corporeal existence. Amid reports of multiple suspended workers for Kirk-related remarks on social media, Delta Airlines CEO Ed Bastion reminded employees that “we all represent Delta, at all times, in any forum.” Sorry, Ed, but no, they don’t. He continued: “It’s essential that we act in ways that uphold our shared values and the human connection that defines us.” No, it’s not, except maybe during work hours. 

None of this is helped by the legal cluelessness of the person who is supposed to be the nation’s chief law enforcement officer. Asserting that “there’s free speech and then there’s hate speech,” Attorney General Pam Bondi promises “we will absolutely target you, go after you, if you are targeting anyone with hate speech.” Only if you want to violate the constitution, as even conservative Associate Supreme Court Justice Samuel Alito knows full well (p. 25, first paragraph). 

It is troublesome that university academics are being targeted (and not just because that’s my day job) and that Tennessee elected officials including Gov. Bill Lee and Sen. Marsha Blackburn seem to be taking particular pleasure in hounding university leaders to take action. Of course Bill and Marsha have the right to be as outraged as they like at whatever they like — free speech lives! — but they might want to temper their glee with a little remedial consideration of the dark and sordid modern history of academic censorship. 

Sorting through the various posts for which free-speaking Kirk antagonists have been shipped off to unemployment lines, one finds some that are certifiably hideous, but others are merely disagreeable, and some essentially inoffensive, amounting to little more than pointed critique.

As always when free speech is on the table, the hard part is drawing the borders between these categories. What makes America’s First Amendment brand of free speech unique and wonderful is that for the most part we don’t try. Now is not the time to start.