My article in the Journal of Free Speech Law, “Laws Should Be Restrictive

It’s out now in the Symposium on Unofficial Restrictions on Free Speech. Introduction and Conclusion:

About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation. Of course, that doesn’t mean nearly half. Which jurisdiction is correct? And, if private employers should generally refuse to fire, discipline, or even hire workers based on their speech, what kinds of speech should be protected? …

As I hope I’ve made clear, laws restricting private-employer-imposed speech restrictions can be a worse cure than the disease. They may unduly interfere with employers’ cooperative rights (though not usually in unconstitutional ways). They may unfairly require employers to pay employees who are more troublesome than they are worth. They can make it difficult for employers to fire employees even for legitimate reasons unrelated to the employee’s speech. And of course, they can increase the amount of offensive and harmful speech by making such speech less expensive for speakers (although the same can be said about free speech rights in general).

At the same time, private employer speech restrictions actually threaten to undermine democratic self-governance, the marketplace of ideas, self-expression, and the development of autonomous citizens, much like government speech restrictions.

To take just one example, consider abortion, which the Supreme Court has now returned to the political process. It’s harder to have a meaningful democratic debate on this issue if people know they can be fired for signing an initiative or referendum petition, or for giving their money to a ballot-measure campaign, or for publicly endorsing a candidate—or, for that matter, just one. or to express their opinion about the moral or practical implications of other positions. And to the extent that religious association or expression on this subject is protected by Title VII and state religious discrimination prohibitions, so should non-religious expression.

This threat to public discourse and self-expression also appears to be growing, as it seems easier than ever for people to demand, in an organized way, the shooting of other people whose speech they condemn. And the existence of such a law can take part of this public pressure from employers, answering such demands of employers: “We don’t like the employee’s speech, but we can’t fire him, because the law is tied. Our hands.” I’m not sure what the correct answer to this question is; But I hope that what I have said above can help us think through them.