THE CRINGING AND THE CRAVEN: FREEDOM OF EXPRESSION IN, AROUND, AND BEYOND THE WORKPLACE Bruce Barry Abstract: Work is a place where many adults devote significant por dons of their waking lives, but it is also a place where civil liberties, including freedom of speech, are significantly constrained. I examine the regulation and control of expressive activity in and around the workplace from legal, managerial, and ethical perspectives. The focus of this article is on workplace freedom of expression: the ability to engage in acts of expression at or away from the workplace, on subjects related or unrelated to the workplace, free from the threat of discipline or dis charge. I present a taxonomy of workplace-relevant acts of expression, describe the present legal status of workplace expression, review and integrate theoredcal perspecdves on free speech, drawn mainly from legal theory and philosophy, and critically assess the state of freedom of expression in the workplace, arguing that it is excessively and un necessarily limited in both law and management practice. In September 2004, Lynne Gobbell was fired from her job as a factory machine operator in Decatur, Alabama, because her automobile in the company's parking lot displayed a bumper sticker supporting John Kerry for president (Stancil 2004). In 2001, Clayton Vemon was fired by the Enron Corporadon after posdng on an Intemet message board his opinion that Enron CEO Kenneth Lay is "a truly evil and satanic figure" (Berenson 2002: C8). In 1998, Edward Blum resigned his position as a stockbroker in Houston after (as he alleged) the firm pressured him to curtail his off-work political activities in support of a municipal ballot inidadve on affirmative action (Holmes 1998). In August 2004, a web developer named Joyce Park was fired from her job at an online social network website company for mentions of her employer in writings posted to her blog (Wallack 2005).' Gonzalo Cotto, an aircraft factory worker in Connecticut, sued his employer after he was fired for refusing to display an American ffag at his workstation during a Gulf War celebradon (Associated Press 1999). After several appeals, Connecticut's highest court rejected Cotto's claim that his dismissal violated a state law protecting consdtutional rights in the workplace.^ These incidents share a common theme: punishment or retaliadon by an employer for employee actions that involve expressive behavior—verbal or symbolic actions that would, in other domains of social life and in many countries, be regarded as © 2007. Business Ethics Quarterly, Volume 17, Issue 2. ISSN 1052-150X. pp. 263-296 BUSINESS ETHICS QUARTERLY protected speech. Freedom of speech and expression are bedrock tenets of liberty found in the legal frameworks of most nations having systems of civil democracy or repubhcan govemment. Yet as these examples indicate, the scope of free expression in and around the workplace can be quite limited (especially in the U.S. compared to many other "Westem" democracies). Work is a place where many adults devote significant portions of their waking lives, but it is also a place where civil hberdes, including but not limited to freedom of speech, are significantly constrained. The aim of this article is to examine the reguladon and control of expressive acdvity in and around the workplace from legal, managerial, and ethical perspecdves. All employers, of course, restrict at least some speech in the sense that virtually none would allow any utterance or expressive act at any time. Even without empirical evidence on the matter, it seems reasonable to assume that most employers prefer to sancdon expression that markedly dismpts workplace objectives or places the firm at legal risk. However, even if virtually no inherent right to free expression is assumed in private sector employment (and only hmited such rights exist in public employment), it is likely in practice that tolerance for freedom of expression varies significandy from employer to employer. It is this variance—bome of differences not just in pohcies but also in organizadonal cultures and normadve pracdces—that sdmulates the present inquiry. My analysis is organized in the following way. In the first secdon, I define free expression in the workplace, present a taxonomy of workplace-relevant acts of expression, and explain why this subject, which drew some limited attention from scholars in organizational behavior and business ethics in the past, merits a new and detailed analysis now. Second, I describe the current legal status of workplace expression in the U.S. The divide between public- and private-sector employment underpins workplace rights as a legal matter, and so this bifurcadon appropriately drives my overview of the law in this area. In a third secdon, I briefly review theoredcal perspectives on free speech, drawn mainly from legal theory and philosophy, as vehicles for evaluating the opportunities and limitadons of expression in the contemporary workplace. In the fourth and final major secdon, I cridcally assess the state of freedom of expression in the workplace, arguing that it is excessively and unnecessarily limited in both law and management practice. /. Definition and Justification Defining Workplace Freedom of Expression Workplace speech as a hberty having roots in law, pohcy, custom, or ethics has received hmited scholarly attendon, but when it has, the focus has typically been constrained to speech at work or about work. For example, Campbell, a philosopher, defined workplace freedom of expression as "the capacity of employees to have and express opinions in their workplace about their workplace and the organisadon that employs them" (Campbell 2002: 1). Esdund, a legal scholar, denned freedom of speech in the workplace as "the freedom to speak out at or about the workplace FREEDOM OF EXPRESSION IN THE WORKPLACE 265 free from the threat of discharge or serious discipline" (Esdund 1995: 114). Lippke defined work-related speech as "speech that occurs within the workplace, but also speech which is sufficiently about work so that though it occurs outside the workplace, it is subject to employer sanction" (Lippke 1992: 238). My focus in this ardcle is on a broader canvas of expression, including speech at or about work, but also encompassing discourse (verbal or symbolic) having minimal or even no reladon to the workplace or employing organization, but which may arouse some form of employer reacdon, reguladon, or retaliadon. The incident mendoned at the outset involving a worker discharged for a pohdcal message affixed to an automobile in a factory parking lot moves beyond these cited definitions in two ways: by involving content that is plainly unrelated to work or workplace, and by taking the form of expression that is not spoken (not literally "speech"). Accordingly, I define expression broadly here. Free speech theorist Scanlon (1972) defined an act of expression as "any acdon that is intended .. . to communicate to one or more persons some proposition or atdtude" including acts of speech, publicadon, displays, failures to display, and artistic performances (Scanlon 1972: 206).' Baker (1989) cridzed Scanlon's definidon as too narrow, nodng that it excludes self-expressive and creative forms of communication. Siding with Baker, I encompass within "expression" acdons that convey a proposition or attitude, or that involve a personal display of self-expression or creativity. The constmct of interest in this article, then, is workplace freedom of expression, which I define as the ability to engage in legally protected acts of expression at or away from the workplace, on subjects related or unrelated to the workplace, free from the threat of formal or informal workplace retribution, discipline, or discharge. This definition is expansive, incorporating the wide canvas of expression that might be legally protected in a constitutional democracy, but is delimited by its focus on expression that is discouraged, proscribed, or regulated by an employer. To illustrate the breadth of acts potentially within its purview, I show in Figure 1 a simplified taxonomy of expression in three dimensions. Acts of expression of potential interest for this analysis vary by venue (occurring at the workplace or away from it), by topic (addressing matters related to work or organizadon, or not), and by publicness (occurring through channels and contexts that make the conveyence one-to-one/few vs. one-to-many). Of the eight types implied within the figure, the two comprising the upper-left quadrant have gamered the most attention from researchers studying interaction processes in organizations, and understandably so. One can assume that the octant in the lowerright—expression that occurs away from the workplace, on off-work topics, in private settings—is the expressive form of least interest presumably to employers, and by extension to this analysis (although by no means wholly irrelevant). Research on Workplace Expression: Why Needed, Why Now? Free speech in the workplace drew some attention from writers on employment rights and business ethics during the 1970s and 1980s, but little since then. Early, BUSINESS ETHICS QUARTERLY Figure 1 Taxonomy of Acts of Expression Venue of Act of Expression* in workplace outside workplace public / public / work/org related broadcast e-mail / op-ed or blog / / closed meeting / happy hour talk Topic of / private / private Act of Expression public / public / political display / visible activism / non-work/org related / corridor politics / dinner table talk / private / private *Entries in italics are examples (not modal types) broad treatments of workplace rights encompassing speech came in books by Ewing (1977, 1983) and Werhane (1985). Ewing (1977), nodng the existence of mechanisms for an employee sanctioned because of race, sex, or religion to seek relief, bemoaned an absence of analagous means of redress for an employee who is penalized for exercising the right of free speech. Werhane (1985) viewed rights to freedom of expression as emerging from constmcdons of moral accountability between employer and employee. Both Ewing and Werhane offered concrete suggesdons for expanding rights at work, using the term "bill of rights" to label proposals. Although each focused mainly on speech about corporate behavior, both touched on an imporiant, related issue: expression that occurs outside of work and beyond the topic of work, but which may draw attention or sanction from one's employer (as in the example of the stockbroker mentioned at the start of this article). In the last two decades, workplace speech has drawn significant attendon from legal scholars (e.g., Andrias 2003; Bingham 1994; Estlund 1997), but minimal attention from researchers in the fields of organizational behavior, labor relations, and business ethics (Werhane condnued to write prolifically on employment rights; see Werhane 1999; Werhane, Radin, and Bowie 2004). Speech aside, organizational scientists have continued to address issues of workplace rights, focusing mainly in recent years on the management of employee privacy (e.g., Alge 2001; Bies 1996; FREEDOM OF EXPRESSION IN THE WORKPLACE Brown 1996; Manning 1997). The last two decades have also been an energetic period for research on a variety of narrower organizational phenomena that bear on aspects of expression at work, including whistle-blowing (e.g.. Near and Miceli 1995), procedural justice (e.g., Tyler, Degoey, and Smith 1996), employee voice (e.g., Barry and Shapiro 2000), participation in decision making (e.g., Connor 1992), creativity (e.g.. Ford 1996), and organizational silence (e.g., Morrison and Milliken 2000), to name a few. A renewed interest in and analysis of free expression in the workplace is warranted for several reasons. First, the legal climate regarding free speech in the workplace has evolved in significant ways since Ewing (1977) and Werhane (1985) were wridng about employment rights. In the next section I will summarize these developments, which emerge (in the U.S.) from a series of mlings by federal courts and analyses by legal scholars. Second, the workplace itself is changing in ways that renderrights to expression both more threatened and more important. Yamada (1998) developed this argument, describing several factors that raise concems about employers' inclinadon to limit workplace expression: individual economic insecurity that breeds self-censorship at work, a rise in electronic surveillance of workers, a decline in unionization, an expansion in corporate pohtical pardsanship (which ostensibly chills employee expression that might deviate from the preferred point of view), and the simple fact that people work longer hours than in the past. The nodon that people spend more time at work (Wallace 2004) bridges into a third rationale for more attendon to workplace expression: the role of the workplace, given that many individuals spend the bulk of their waking hours there, as a building block for community engagement (Schultz 2000) and a cridcal site for exchanges of views and public debate around political and social issues (Andrias 2003). Moreover, if individuals are spending more dme on the job, then opportunides to engage in expression outside the workplace inevitably diminish (Yamada 1998). The relevance of speech rights to broader notions of citizenship and community in a free society is a subject to which I will retum later. Fourth, advances in informadon technology, and individuals' abihty to use technology for expressive purposes, change the landscape of free expression in and around the workplace (and everywhere else; Balkin 2004). A currendy prominent illustradon is found in cases where individuals are sancdoned or dismissed for comments about the workplace that appear in onhne web sites such as blogs; these in a sense are technology- enabled "publicadon" outlets that were previously unavailable. Workplace freedom of expression has occupied new terrain in an era of web sites, email, instant messaging, blogs, vlogs, wikis, and podcasts, compared to what existed before. Lastly, renewed attention to free speech at work is warranted by the abundance (noted earlier) of research on related topics within the fields of organizational behavior and labor relations. As a consequence of this progress, researchers and managers are more attuned than they were twenty ago to the role of workplace expression and participadon in organizational processes and outcomes. BUSINESS ETHICS QUARTERLY //. The Legal Status ofEree Expression at Work A comprehensive treatment of relevant law on this issue is beyond both the scope of this article and the purview of this joumal, but a synopsis of legal issues is included here for two reasons. First, it is easy (but incorrect) to assume that there is no free speech in the workplace, given that (in the U.S.) "particularly in the private sector, employers enjoy nearly untrammeled power to censor and punish the speech of their employees" (Esdund 1997:689). Public sector employees in many countries (including the U.S.) have non-trivial free speech rights by law, and in some places and under some conditions these rights can extend to the private sector. Second, a grasp of the current legal landscape is a necessary precursor to discussing streams of legal theory and philosophy that argue for extending civil liberties in society writ large to the workplace, even in the private sector. My discussion here is in three parts. Thefirst part identifies key elements in U.S. law that limit the exercise of rights in general, and free speech rights in pardcular, in the workplace. I then describe the status of workplace expression in pubhc sector employment, and conclude the section with an analysis of workplace expression in the private sector. Legal Limits on Workplace Rights Free speech in the United States is enshrined as a fundamental right in the First Amendment to the U.S. consdtution. Rights to free speech are also separately guaranteed in every state consdtution (Freedman 1988). There are, however, limits to constitutional rights, and two major legal doctrines are relevant to understanding limitadons on rights of expression at work: state action and employment-at-will. State Action. The legal doctrine of state action confines the reach of the constitudon to situations where the govemment acts. Initially this meant only the federal govemment, but the Fourteenth Amendment extended to the states the obligation to uphold federal constitudonal protecdons. The distinction this creates between between public and private enddes in reladon to the consdtudon wasfirst articulated by the Supreme Court in a series of cases in the late nineteenth century,"* with the result that a person denied constitutional rights "through the wrongful conduct of a private individual cannot seek vindication through the use of the federal or state guarantees" (Ayoub 1984: 893). This givesrise to a fundamental pubhc/private distincdon in workplacerights and other aspects of labor law (Klare 1982). There are some excepdons: a private endty, such as a corporation, can be treated in law as a state actor if there is a substantial nexus between private behavior and the state, such as when afirm performs a pubhc funcdon traditionally and exclusively undertaken by govemment (Ayoub 1984; Chemerinsky 1985). Examples include a private firm that mns a company town or administers a municipal park, but these are admittedly antiquated ones; apphcadon of the constitution to private firms is now almost unheard of. Private organizadons are required to uphold civil rights when expressly obliged to by statute, as in the FREEDOM OF EXPRESSION IN THE WORKPLACE case of the discrimination provisions of the Civil Rights Act of 1964 (Barak-Erez 1995). That, however, grows out of statutory law, not the consdtudon itself. As a general matter, the doctrine of state action "means that 'private' corporations and other large organizations are not subject to the Bill of Rights in the mles they make for employees" (Reich 1991: 1429). Although the pubhc-private divide might seem clear enough in the abstract, the doctrine of state acdon has an inherent intemal contradiction that diffuses its clarity in many circumstances. Private acdons virtually always have a public component in the sense that one's ability to engage in the acdon depends on the system of background laws and rights that make the action possible. Sunstein (2002: 467) pursued this argument with an example: If a private employer refuses to hire, say, homosexuals, and is allowed to discriminate in this way without repercussion, that is so not because of some natural state of affairs, but because the employer is allocated relevant rights by the legal system. As Peller and Tushnet (2004: 789) pointed out, "every exercise of 'private' rights in a liberal legal order depends on the potential exercise of state power to prevent other private actors from interfering with the rights holder." The state acdon doctrine has been analyzed and dissected by legal scholars at great length, with cridcs arguing that it is anachronisdc and often inconsistent in application, poorly adapted to the trend toward privadzation of activities once tradidonally public, and obsolete in light of the growth of large private insdtutions exerdng substandal control over the everyday lives of individuals (e.g., Barak-Erez 1995; Chemerinsky 1985; Reich 1991; Summers 1986; see Marshall 1985 for a refutadon of some of diese arguments). Given the state acdon doctrine as it stands, however, workplacerights to free expression vary substandally between pubhc and private sector employment contexts (as I will discuss shortly). Employment-at-Will. Employment-at-will is the basic doctrine in U.S. labor law that specifies the reladonship between worker and employer in the absence of an employment contract. Its original and classic formuladon in a Tennessee Supreme Court decision in 1884 held that employers "may dismiss their employees at will.. . for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong."^ Although the elemental premise of employment-at-will seems stark and doctrinaire—"the employer has sovereignty except to the extent it has expressly granted its employees rights" (Summers 2000: 68)—courts and legislatures have carved out limitadons, some of which bear on workplace expression. Employment-at-will does not apply where a contract (such as a collecdve bargaining agreement) specifies terms and condidons of employment and dismissal. Beyond contracts, there are four broad classes of exceptions to employment-at-will emerging from laws and court decisions that rein in the employer's power to discharge someone who would otherwise be an at-will employee. The first is the public pohcy excepdon, when a discharge threatens an important pubhc interest or violates some right guaranteed to an employee by law (Cavico 2004). Second are statutory exceptions that protect certain classes of employees (e.g., laws barring discriminadon based on BUSINESS ETHICS QUARTERLY race, sex, rehgion, and the like). The third is an imphed contract excepdon, which can arise when employers makes promises about job security in employment handbooks or in statements made by supervisors (Kittner and Kohler 2000). The fourth is where a dismissal without cause of a long-term employee violates an "implied covenant of good faith and fair dealing" (Summers 2000).* The most significant limitadon on employment-at-wiU is the public pohcy exception— when an employee's termination threatens a public policy that is embodied in a statute, reguladon, or consdtudonal provision (Kim 1997). It first arose in Califomia court decisions in 1959 and 1961, and spread following an influendal law joumal article (Blades 1967) urging courts to correct the imbalance of power between employers and workers by constmcting an "abusive discharge" cause of acdon (Ballam 2000 reviews this history). As a pracdcal matter, interpretadons of public policy excepdons have varied widely, and as a result the scope of protecdon against unfair dismissal is hregular and unpredictable. Whisdeblowing, an especially prominent form of the public policy excepdon, is a widely recognized exception to employment-at-will in common law, and has been the basis for both state and federal statutes (see Cavico 2004 for a review). Whisdeblowing statutes vary substandally in their reach at the state level. At the federal level, corporate sentencing guidelines enacted in 1991 created incendves for organizations to protect whisdeblowers intemally (Callahan et al. 2002), with broader whisdeblower protecdons written into die Sarbanes-Oxley Act of 2002 (Lowenfels and Bromberg 2004). The employment-at-will doctrine is at once powerful and controversial. Notwithstanding the various excepdons, it "remains the predominant employee reladons policy in the United States" (Dunford & Devine 1998: 928). According to one esdmate, two million nonprobadonary, nonunion, non-civil service workers are discharged annually, of whom over 150,000 would have legidmate wrongful discharge claims (Kohler 1999: n. 17). Defenders argue diat employment-at-will is jusdfied on grounds of faimess, hberty, and efficiency in a compeddve marketplace for labor (e.g., Epstein 1984; Rudy 2002). Cridcs reject these market assumpdons as ffawed given an imbalance of power in the workplace, and assail employment-at-will as a uniquely oppressive system (unique among industrialized nadons) that exploits employee vulnerabilities and treats employer prerogadve as boundless (e.g.. Blades 1967; Leonard 1988; Radin and Werhane 2003). Cridcs also say die courts have invoked public pohcy excepdons too infrequendy (Summers 2000) and placed onerous delays and burdens of proof on employees seeking relief for wrongful discharge (Esdund 1995). Even where employment-at-will applies, employers are often advised to maintain policies of "progressive disciphne" (Falcone 1999; Janove 2005)—communicadng expectadons, giving workers opportunides to improve performance, documendng disciplinary steps, and establishing grievance systems. With these explanadons of the key doctrines of state acdon and employment-atwill in hand, I tum next to an overview of the expressive rights that actually exist in the U.S. workplace. I describe the pubhc sector workplace and the private sector workplace separately, in tum. FREEDOM OF EXPRESSION IN THE WORKPLACE The Public Sector Workplace Public sector employees in the U.S. have some free speech rights—their employers are by definition "state actors"—but the courts over time have constrained the reach of those rights. In a series of mlings starting in the 1960s, the U.S. Supreme Court created a balancing test for weighing the validity of public sector employee free speech claims (Bingham 1994, and Wells 2001, review the law on this issue). In a nutshell, a public employee's speech is potentially protected only if it addresses a matter of "public concem," and that concem is weighed against an employer's interest in a workplace that is efficient and free from excessive dismpdon. In a seminal case on this point, Connick v. Myers, the U.S. Supreme Court ruled in 1983 that a New Orleans prosecutor was not unlawfully fired when she distributed a questionnaire to fellow employees in an attempt to ascertain if dissatisfaction with work policies was widespread.^ The lawyer, Myers, argued that the questionnaire was a form of free speech; the Court mled that her grievances did not rise to the level of public concem. In rejecdng her claim, the Court articulated criteria for evaluating whether a particular case of expression meets the test of public concem. A large amount of analysis and debate among legal scholars about the meaning of public concem ensued (e.g., Allred 1988; Massaro 1987). Esdund offered this interpretation: Employees speak on matters of public concem when they report dereliction of public duties, corruption, or threats to public health or safety. ... On the other hand, the public concem test is often used to deny protection to employees' expression of grievances or criticism concerning workplace conditions. (Estlund 1995: 115) An interpretadon more sympathedc to employers would be that the public concem test prevents workers from elevating personal complaints about workplace condidons to free speech claims (Norris 1991). Nonetheless, the public concem doctrine "recognized that the organizational role of employee could be defined so pervasively as to destroy the constitutional role of citizen," and so allows courts to weigh individual speech rights against potendal risks to employer authority or efficiency (Post 1995: 260). Apart from these consdtutional issues, narrower domains of public employee speech are protected by whistleblower laws at the federal, state, and municipal levels, as well as by court decisions and statutes that protect expression related to collective bargaining and unionizadon (Esdund 1995). There are also laws protecting public employees from certain forms of compelled speech; in particular, it is a violadon of federal law to condition employment on "polidcal acdvity or for the support of or opposition to any candidate or any polidcal party."^ At the same time, some public employees are constrained in their rights to polidcal expression by the federal Hatch Act and "little Hatch acts" in the states, which limit pardsan pohtical activity by public employees.' BUSINESS ETHICS QUARTERLY The Private Sector Workplace Given the legal realities of state action and employment-at-will, discussed earlier, rights to free expression in the private sector workplace in the U.S. are quite limited. As in the public sector, numerous whistleblower laws at various levels of govemment protect employees against retahadon for bringing charges or participadng in regulatory proceedings regarding employer behavior. The 1935 Nadonal Labor Reladons Act (NLRA) protects private employee expression related to union acdvity as well as some expression unrelated to unions.'" Esdund (1995) contends that the Act's broad language potentially protects a wider range of employee speech than is typically assumed, but the reality of the Act's jurisdicdon has precluded its protecdng a broad range of workplace speech (Yamada 1998). Andrias (2003) noted that speech protecdon grounded in labor law is statutory, not consdtudonal, whereas speech by corporations is consdtutionally protected, creadng an imbalance of sorts that disfavors employees: [EJmployers are deemed to have a constitutional right to speak against unionization. ... Thus, even though both workers and employees are protected from govemment interference, employers enjoy a constitutionally protected right to speak while employees within a private-sector workplace effectively do not. (Andrias 2003: 2420) I hasten to add that this "imbalance" results not from differences in the status of the speakers (employer vs. employee), but from differences in the status of would-be "regulators" of speech. There is no private endty with the power and incentive to regulate corporate speech, whereas there is a private entity (viz., the corporation) with the power and incentive to regulate employee expression. One expressive context that does carry some protections for private sector workers is in the area of elecdon and voting behavior. It is generally illegal under federal law to interfere with the right to vote, or to pay someone to vote a certain way or withhold a vote (see Bingham 1994: n. 48). Federal law also bars promises or threats related to employment made possible by Congressional acdon (e.g., a private sector job created by a federal grant). State statutes provide addidonal protecdon (see Bingham 1994: n. 49). These rights are variable from state to state, and leave much to court interpretadon. For instance, a Louisiana resident in the 1980s who was fired when he refused to end his city council candidacy successfully challenged the discharge under a state law barring employers from prohibidng employees from participadng in pohdcal acdvity." On die odier hand, a employee who was fired after being elected mayor of his town lost his challenge when a New Mexico court mled that mnning for office does not qualify as a public pohcy excepdon to employment-at-will.'^ One further avenue for protecdon of expression in private-sector employment is found in legal safeguards against so-called "lifestyle discriminadon"—laws that bar employers from penalizing workers for off-work behavior that is otherwise legal (Sugarman 2003). Most existing state laws of this type are aimed narrowly at protecdng the off-work use of lawful products (tobacco and/or alcohol). A handful FREEDOM OF EXPRESSION IN THE WORKPLACE of states have broader protections that may extend to off-work behavior involving speech (Gilbert 2005), although they tend not to single out expressive behavior for protecdon. Lastly, a few states have laws that appear by their language to extend broad First Amendment protection to the private sector workplace. One of these is Connecticut, which in the 1980s enacted a law barring employers from disciplining employees "on account of the exercise by such employee of rights guaranteed by the first amendment [sic] to the United States Constitution.'"^ (It was under this state law that the factory worker refusing to display a flag mentioned in the opening paragraph of this ardcle filed suit.) A similar law in South CaroHna bars job dismissal "because of polidcal opinions or the exercise of pohtical rights and privileges" guaranteed by state and federal laws and constitutions.''' Laws like these are, however, rare, and infrequently brought to bear on private employers. Summary Although public-sector workers have more protections than private employees, the only difference between public and private workplaces is in the laws that apply to them. All might have contractual terms of employment (or common-law mles in the absence of a contract), and all have some statutes (e.g., whisdeblowing) that cover them. Public employees also gain some protection from the constitudon, but only when expression involves matters of public concem. Overall, the net result (cridcs argue) is a labor relations climate affording minimal protection of individual rights—including expressiverights—against employer power (Holden 1995).'^ In the private sector, the doctrine of state action in constitudonal law and the doctrine of employment-at-will in labor law combine to create a workplace context whererights to expression are severely limited. Apartfi'om the excepdons discussed earher, a private at-will employer need not (if it so chooses) put up with any form of expression whatsoever. An assertion that this is wrong or inappropriate would require an argument for fundamental transformadon of the legal climate—significant modification or ehniination of either or both of these doctrines. Scholarly arguments to that effect have been made for each doctrine (see, for example, cridques by Chemerinsky 1985 and Reich 1991 of state action; objections by McCall 2003 and Werhane, Radin, and Bowie 2004 to employment-at-will), although less apparent are cridcal analyses that considers their combined role as obstacles to workplace rights. In private-sector employment, the state action principle says one has no constitutionalright to expression, and the employment-at-will doctrine gives employers discretion to overlook rights not otherwise codified in statutory or common law. With protecdons so limited, it is somedmes said, and sdll the case, that employees in the U.S. largely check their rights to free speech and other civil liberties at the workplace door (Ewing 1977).'^ BUSINESS ETHICS QUARTERLY ///. Theoretical Perspectives on Free Expression Theories of free speech address a few fundamental questions: What forms of human activity represent "speech" or "expression"? What are the underlying values of expression that drive constitutional free speech protection? How should a society draw lines (if any be drawn) dividing expression that is protected from expression that is not? I give attendon to theories addressing these quesdons because in illuminating the reasons why expression is valued in a progressive social order, theories of free speech may speak to the implicadons of (often austere) limitadons on workplace expression. It bears emphasizing at the outset that these theories are generally directed to reguladon of speech by govemment—the most consequential "regulator" of speech since its mles affect everyone. Private entities, such as employers, have a protected right to define themselves through the speech that occurs within their domain. Nonetheless, a sense of the underlying values, aims, and hniits of free expression in society at large is helpful to formuladng a posidon on the optimal role of free expression in and around one's life at work. Theoretical arguments about free speech can be challenging to summarize because they fall into conceptual categories that are multifaceted and overlapping, with different labels at dmes describing similar ideas. One broad division, frequendy invoked (although with varying terminology), separates theorists who emphasize the collective purposes of rights to free speech from theorists who focus on individual objecdves. Sunstein, for example, articulated a "Madisonian" perspective on free speech rooted in the "central consdtutional goal of creadng a dehberative democracy" (Sunstein 1993: 18). He drew a contrast with "autonomy" theories that focus on expression as the means for individuals to maintain individual dignity, engage in self-mastery, and generally be "the authors of the narradves of their own lives" (Sun- stein 1993: 138). Similar bifurcations are found in Fiss's (1996a, 1996b) disdnction between "democradc" and "libertarian" theories of fi-ee speech, Greenawalt's (1989) disdnction between "consequentialist" and "non-consequentialist" approaches to expression, and Lieberwitz's (1986) contrast between "govemment process" and "self-development" models of free speech. I will discuss each of these two strands of free speech theory separately, and then note where they overlap. Collectivist Theory I prefer Post's (1993) label—collectivist—to describe dieories that privilege collective processes of dehberadon over individual autonomy in the matter of free speech. Collecdvism found early expression in what came to be known as a "marketplace model" of speech. With origins in the nineteenth-century wridng of J. S. Mill (1859/1974)," the marketplace model found concrete expression in a famous dissenting opinion written by Supreme Court Jusdce Oliver Wendell Holmes in a 1919 case about seditious speech: "The best test of tmth is the power of the thought to get itself accepted in the compeddon of the market. .. . That at any rate is the theory of our Consdtudon.'"* Marketplace theory would protect not necessarily all FREEDOM OF EXPRESSION IN THE WORKPLACE speech that conveys ideas, but only "speech that communicates ideas and that is embedded in the kinds of social practices that produce tmth" (Post 2000: 2366). The marketplace model has been a dominant influence on the modem Supreme Court in its free speech decisions (Baker 1989), but collectivist theorists find it troubling on grounds of faimess and neutrality. Govemment is theoretically neutral in a free market for speech, but the unregulated market for ideas in pracdce may compromise neud-ality if opportunides to speak depend on wealth, enddements, or other imbalances in the availability of expressive oudets (Sunstein 1992). Collectivists departed from marketplace theory, beginning with Alexander Meiklejohn, an early and influential free speech theorist," who argued in a celebrated essay in 1948 that "the principle of the freedom of speech springs from the necessities of the program of self govemment" (Meiklejohn 1948/1965: 27). Emphasizing the abihty of listeners to hear speech that aids collective decision making over the rights of speakers to express themselves, Meiklejohn famously wrote, "What is essential is not that everyone shall speak, but that everything worth saying shall be said" (Meiklehohn 1948/1965: 26).2o Post (2000: 2367) points to a shift in collecdvist theory from Meiklejohn's "democratic" theory of speech emphasizing the goal of wise decision making, to a "pardcipatory" model that focuses more on speech in the service of "authendc self-determination"—the extent to which individuals identify govemment as "their own." Contemporary collecdvist theorists believe that effective deliberadve democracy requires protection of a wider range of speech than just that which is explicitly political, but they do place more importance on political expression. This leads them to idendfy different classes of (ostensibly protected) speech that merit different levels of protection—so-called two-level (Redish 1982) or two-tier (Fiss 1996b; Sunstein 1993) theories. The core idea is that not all speech is the same, and some speech is of higher value (vis-a-vis legal protecdon) than other speech. Defining the boundary between these ders of speech is where the hard work begins, and where the hard cases come into play.^' Collectivists tolerate some regulation of speech in order to ensure that voices promoting self-govemance are heard rather than drowned out by inqualities of wealth, power, or access, even if that means some sacrifice of hberty for an individual speaker. Nevertheless, they cast a wide net of protection because speech can be indirecdy polidcal, because it might become polidcal, or because it is too difficult to draw the line (Balkin 2004). Individualist Theories "Individualist" is perhaps a clumsy label for this side of the theoredcal divide, but it does create a suitable contrast with collectivist theories, and is an apt mbric for discussions of free speech that appeal to principles of autonomy (Strauss 1991), self-fulfillment (Emerson 1963), self-realizadon (Redish 1982), moral independence (Dworkin 1992: 62), and hberty (Baker 1989). What these approaches share is an explicit commitment to specifying underlying values of individualism that support BUSINESS ETHICS QUARTERLY free speech as a consdtudonal principle, and then to constmcting a framework of free speech rights that derives from and reinforces those values. Emerson (1963, 1970), whose thinking is said to have influenced legal writing and court decisions "profoundly" (Shiffrin 1984: 1283), articulated four key First Amendment values: (1) individual self-fulfillment, (2) advancement of knowledge and discovery of tmth, (3) participadon in decision making, and (4) achievement of stable community. We see in these values the distincdon between individualist and collecdvist approaches to free speech: From an individualist perspective, the point of free speech is not to make popular sovereignty work, but rather to honor individual rights and perogatives that might, in tum, enhance the collective enterprise. Emerson put it this way: "[SJuppression of belief, opinion, or other expression is an affront to the dignity of man, a negation of man's essential nature" (Emerson 1970: 6). Accordingly, an individuahst theory of free speech might begin with what Greenawalt ardculates as a "minimal principle of hberty": govemment should not stop people from doing what they want unless it has a posidve reason, and "should not inhibit communications that pose no legitimate threat of harm" (Greenawalt 1989: 120). Even so, individualist free speech theorists, no less than collectivists, have to wrestle with different kinds of expression and with hard questions about govemment limits on speech when risks to collecdve welfare, or when potendal harms to individuals or cherished institudons, are involved (e.g., Scanlon 1979). Baker's (1989) liberty theory is among the most comprehensive of individualist theories. Baker adopts two of Emerson's (1963) free speech values—individual self- fulfillment and participation in social change—as the fundamental purposes of free speech protection. Baker would protect virtually all expression that comports with these values respecdng individual autonomy, as long as they do not involve harm or coercion. Baker would permit govemment restraint on three types of expression: (1) speech involved in a taking of or injury to another's person or property; (2) coercive speech diat disrespects and distorts the integrity of someone else's mental processes or autonomy, and (3) speech "not chosen by the speaker," meaning it does not manifest the speaker's substantive values (Baker 1989: 59-60). A variation on individualism is found in Strauss's (1991) "persuasion principle" of free speech. Focusing his analysis on the moral posidon of the hstener, Strauss argued from a Kandan perspecdve that decepdve or manipulative communicadon violates personal autonomy (Kant 1785/1969). Accordingly, reguladon of expression depends on the means by which speech works its effects on hearers: "[T]he govemment may not restrict speech because it fears, however jusdfiably, that the speech will persuade those who hear it to do something of which the govemement disapproves" (Strauss 1991: 334). The persuasion principle allows reguladon of speech that works through subterfuge or other deleterious means (e.g., inciting violence or egregious social dismption), but protects expression that involves nondecepdve, non-coercive persuasion. FREEDOM OF EXPRESSION IN THE WORKPLACE Summary Having spent the last few pages disdnguishing collecdvist from individualist principles of free expression, I hasten to add that they aren't mutually exclusive. Although different in their focus on key virtues of free speech, neither approach actually rejects the other's premises. Individuahsts emphasize autonomy, but draw hnes when violent or coercive expression comes into play (e.g.. Baker 1989). CoUecdvists privilege the consequendalist value of speech as an ingredient for deliberadve self-government, but are sensitive to a rights perspecdve, and see reguladon of speech as enhancing rather than inevitably restricting autonomy. Both perspectives are wary of govemment regulation of speech, sharing a sense that autonomy and democracy are often consonant, occasionally in tension, but rarely incompatible. A critical inference to draw from this excursion into free speech theory is that neither perspecdve—individualist or collectivist—is necessarily compadble with die U.S. employment system's narrow view of rights to workplace expression. This claim is part of the argument to come. IV. A Critical Assessment of Workplace Expression In this secdon I argue that workplace freedom of expression is excessively and unnecessarily limited in both law and customary management pracdce. This would not be a pardcularly difficult argument to make from the perspective of a blinkered civil libertarian who treats freedoms to think, speak, and act as paramount values for a free society, and who regards procedural due process in public and private institutions as the central principle of a just society. It is, however, a more challenging assignment for one seeking to reconcile a libertarian view of individual expression with market precepts regarding economic prosperity and organizadonal efficiency. My argument follows three tracks. First, I consider the consequences of the present state of workplace expression for individuals and organizadons, which underlie an inescapable tension between individual rights and employer prerogatives. Second, I explore how limited rights to workplace expression influence the larger civil society within which employers and employees exist. Third, I address implicadons of an argument for freer workplace expression: What in concrete legal and managerial terms might an expansion of rights to expression in and around the workplace look like? Tension and Balance I begin with the proposidon that a restricdve legal and organizational chmate for workplace speech interferes with basic individual rights to autonomy of thought, expression, and conscience. Earlier I described "individualist" theories that emphasize the implications of free expression for personal autonomy, realization, and fulfillment (e.g.. Baker 1989; Emerson 1963; Redish 1982; Sd-auss 1991). The question here is whether these individualist values are significantly compromised by the kinds of constraints on expression in and around work that are character BUSINESS ETHICS QUARTERLY isdc of U.S. employment. Are these values infringed upon by limits to workplace expression in the same way that they are harmed by more general limits to free speech? Answering in the affirmative means taking a position, at least implicitly, that the experience of hberty depends meaningfully on the experience of liberty at (and around) work. Arguably it does, given that it is in connecdon with work that many people encounter significant adult interaction and experience civil society. Werhane (1985), among others, has argued that basic moral rights including freedom of choice, action, autonomy, and privacy, which help people develop as individuals, transcend economic relations and institutional boundaries: These rights are so fundamental and inviolable that every human being possesses them despite his or her particular social, political, historical, or even cultural situation. They should be respected and be able to be exercised everywhere, even at the expense of some allegedly practical interests. (Werhane 1985: 7) The "pracdcal interests" to which Werhane refers are the claims to freedom of acdon that private employers make for themselves as the basis for ongoing commercial enterprise. Vickers (2002) describes a number of factors supporting an employer's prerogative to limit worker speech, including (a) the firm's economic rights to pursue profits; (b) the employer's right to manage a business as it sees fit; (c) the employer's right to culdvate and maintain the loyalty and tmst of workers; (d), the firm's interest in safeguarding a reputadon that free speech might jeopardize; and (e) the firm's right under U.S. and European law to some of the same rights as persons, including speech rights. These specific employer interests may rest atop a broader public interest in business efficiency and effective management as a means to social prosperity and macroeconomic stability. The employer-centered interests that Vickers enumerates focus not on economic efficiency per se, but on die right to pursue efficiency by exercising rights to property and freedom of contract. As McCall (2003) points out, balancing a system (viz., employment-at-will) that privileges employer prerogative against the employee- centered altemative of just-cause dismissal mles means weighing competing claims to similar underlying goals: autonomy, faimess, and udlity. These objecdves can be said to undergird both the employer's claim to ownership and lTee enterprise, and the employee's desire for job security. One way to amehorate these claims is through a market-based argument that consensual wages compensate parties (especially employees) for rights foregone. A market-wage explanation is unconvincing, however, given distortions in compensation efficiency owing to information asymmetries, power asymmetries, and other factors that inhibit marginal wages from matching individuals' marginal contribudons (McCaU 2003). In the case of free expression, we need not frame the tension between employer and employee here as compedng claims to economic liberty. Arguments giving precedence to employer discretion from an economic efficency perspective can be challenged on the grounds that employment is more than just an economic enterprise; a purely economic approach to employment overlooks its human dimensions FREEDOM OF EXPRESSION IN THE WORKPLACE (Werhane, Radin, and Bowie 2004). It is the irresisdble impulse of neoclassical economics to treat reladonships inherently as economic in nature, with compensadon of some form accountable when values diminish or fluctuate. The human dimensions of social life argue for principles other than economic equilibrium, such as the maintenance of pohdcal efficacy and personal freedom over and above (or independent of) economic liberty. Collective action (governments, constitutions, rights codifications) inevitably encroaches on economic discretion and value—or to put it more plainly, infringes on property rights. As Rubin (2005: 299) observed, "To require the govemment to compensate property owners every dme a regulation diminishes the value of their property would hobble, and perhaps destroy, the administrative state, something no court and no developed country is prepared to do." This tension between individual hberty and employer prerogative is the fulcmm on which judicial (see Bingham 1994) and philosophical (e.g., Lippke 1992) analyses of expressive and other workplace rights have pivoted. The prevailing approach that courts and scholars have taken to this tension is one of balance: weighing the individual's right to expressive activity against the employer's ability and discredon to conduct business as it wishes. The Supreme Court first articulated a balancing principle on public-sector employee speech in the 1968 case of an Illinois school teacher who claimed he was unjusdy dismissed for wridng a letter to the editor of a local newspaper: The problem .. . is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concem and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.^^ In later cases, the Court explained that balancing encompasses "full consideration of the govemment's interest in the effective and efficient fulfillment of its responsibilities to the public,"^^ including whether employee expression "impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working reladonships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operadon of the enterprise."^'' Thus, the bar for employee expression to clear if it is to survive a balancing test is set rather high: It may not offend disciphne or harmony, erode personal reladonships, diminish loyalty or confidence, or interfere with (in theory) any aspect of the enterprise. This is a test that almost no task-digressive acdon in the workplace could pass, given a talented lawyer arguing for its failure. It is, therefore, unsurprising that public-sector employees bringing workplace speech claims face an uphill battle, with employers advantageously posidoned to persuade courts applying a balancing test (Ingber 1990). From an ethical standpoint, balancing might seem like a reasonable way to adjudicate conflicdng interests that cannot easily be reconciled in the abstract (i.e., through statutes). I argue, however, that this kind of balancing is troubling because it tends to place the individual employee and the employer on similar moral planes with commensurate ethical claims to autonomy and choice. A different view is that BUSINESS ETHICS QUARTERLY individual rights to conscience, expression, and moral independence outweigh the economic autonomy and discredon of thefirm. This view is at least nominally operative in many societies where mles protecdng political opinions from retribution in employment decisions, such as those found in intemadonal labor convendons (ILO 1958; ILO 1982) are embedded widiin domesdc labor law. In these setdngs, there is a presumpdon of moral priority for pohdcal expression, whereas in the U.S. that right to expression and an employer's right to maintain morale or efficiency or comity represent equivalent moral claims to be balanced. And that, of course, is the case only in the public sector, where the balancing test applies. In die private sector in the U.S., no balancing imperative exists; under the docdrine of employment-at-will, employer interests are paramount (except when whistleblowing is involved), whether or not they are grounded in economic or organizational legidmacy or even reality. Civil Society Arguments for expanding employee rights in the workplace, including rights to expression, are commonly grounded in claims about intrinsic individual employee rights (e.g., Ladenson 1989; Lippke 1992; Werhane 1985, 1999) and/or about defining a more accommodadng balance between worker rights and management perogatives (Ewing 1977,1983; Vickers 2002). A perspective that has received less attendon is the potendal hnkage between rights at work and the character of the broader civil society within which work and workplaces exist. In a very general sense, "civil society" is mbric for moral and political interpretadons of social life and social order (Seligman 1992). In modem polidcal theory the term invokes de Tocqueville's (1835/1969) examinadon of associadonal life in nineteenth-century America as the basis for popular participadon in the work of representative govemment and deliberadve democracy. Involvement in voluntary civic and pohdcal associadons creates aggregadons of shared behef through free speech and freedom of assembly (Galston 2000). Putnam (1995, 2000) argues diat the networks of engagement that flow from associational activities foster social tmst and norms of reciprocity, while reducing temptations to opportunism. The point, in theory, is a society where collecdve acdon dilemmas are cooperadvely resolved with greater ease, yielding healthier democratic institutions. A sweeping way of putting the question is to ask whether employment arrangements embedded within systems of market capitalism and employment-at-will are necessarily hosdle to hberty and democracy writ large. This is problemadc, however, because it leads to a formidable conceptual tangle as to the cause-effect connections involving capitalism and democracy. As Gabriel Almond, an eminent polidcal sciendst, put it, "We have to recognize that... democracy and capitalism are both posidvely and negadvely related, that they both support and subvert each other" (Almond 1991:473). A more manageable approach is to evaluate how discrete aspects of expression in and around the workplace, and limits thereto, are related FREEDOM OF EXPRESSION IN THE WORKPLACE to specific salutary features of civil society. I discuss two such aspects: interaction and social structure. Interaction. I draw a connection between workplace tolerance of relatively uninhibited interaction and the health of a democracy-based civil society. Conversadon may not be the point of work in most circumstances, but work is inescapably a venue for conversation. Given that work is where many adults spend a significant portion of their waking hours, and for some the primary venue for social interaction with other adults, the conversadons that occur have potendally important implications for associational hfe and civil society. Moreover, work is where opportunities for affiliative ties that produce associations beyond work are potentially formed. Putnam (2000) has famously observed that Americans are increasingly "bowling alone"—devoting less dme and energy to the development of social capital through pardcipadon in voluntary civic and fratemal organizations. Yet there can be little doubt that the interpersonal and group engagements that build social capital will (for many individuals) rely substantially on co-workers—especially to the extent that time spent working is on the rise (Wallace 2004). The social ties and interactions that germinate at work are factors that influence the broader political life of individual employees, and by extension communides. There is substantial evidence from research in polidcal science and public opinion formadon that pohdcal atdtudes and behavior arise from and are transmitted through informal networks and social groups both in and out of workplaces, affecting the nature of individual political activity (e.g., Finifter 1974; Huckfeldt, Beck, Dalton, and Levine 1995; Huckfeldt and Sprague 1995; Mutz 2002; Weadierford 1982). As Estlund (2000: 13) writes, "The sheer amount of sociability and cooperation that takes place every day in workplaces should place them at the center of any account of what holds a complex, modem democradc society together." Although workplace interacdon doesn't amount to die kind of voluntary civic associadon that Putnam has in mind when he studies social capital, it is for many individuals central to the formadon of social idendty and community (Andrias 2003; Schultz 2000). Moreover, Estlund (2000, 2003) makes the trenchant point that work is a unique venue for building ties across the social divisions that divide other walks of life, such as race, culture, and ethnicity. She concludes, "The experience of working together in integrated workplaces fosters cooperation and connections and conversations that can help bind together a diverse but divided citizenry, enable broader social cooperation, and enrich public discourse" (Estlund 2000: 94). Thus, to the extent that limitadons on expression at work prevail—whether as artifacts of law, corporate pohcy, or normadve pressure—the ability of workplace interaction to contribute to the formation of social capital is constrained. Social Structure. The stmcture of social relations in employment also may account for connecdons between workplace expression and the health of civil society. Research on polidcal behavior by Sobel (1993) finds that authority stmctures at work are related to polidcal participation in society in the form of campaigning, voting, community involvement, and protest. Sobel argues that "roles within work BUSINESS ETHICS QUARTERLY train occupants to perform polidcal roles because experiences of self-direcdon and conformity at work inculcate congment values and orientations" (Sobel 1993: 340-41). Sobel's data yield effects on polidcal participadon by four types of occupadonal involvement: authority, supervisory responsibility, work participadon, and job participadon. He comments on the underlying mechanism connecdng work life with polidcal life: Perhaps those empowered by activities within the workplace pursue analogous political involvement outside because they leam to be political on the job. Those who do not participate in work decisions, or participate only in decisions affecting their own jobs, do not leam skills that carry over to the political sphere: avoiding office or shop politics may lead to avoiding polidcs outside, while being political at work encourages being political in the community. The quality of political life may, then, depend on the quality of work life. (Sobel 1993: 349) Sobel's claim that involvement at work fosters polidcal participadon impUes an obverse proposidon: that silence or non-involvement at work diminishes poUdcal acdvity beyond the workplace. Researchers in organizadonal behavior have focused attention in recent years on the phenomenon of organizational "silence"—witholding information, opinions, and concems about work issues and problems (Morrison and Milliken 2000). According to Van Dyne, Ang, and Botero (2003), silence can be acquiescent (based on feeling resigned to die reality of having no impact on outcomes), defensive (based on fear and feelings of being personally at risk), or prosocial (based on a desire to be cooperative or altmisdc). There is evidence that self-protective silence has emotional consequences for the individual (Detert and Edmondson 2005), but the work-polidcs involvement link suggests that the consequences may well go further. I contend that organizational processes and dynamics encouraging silence are potentially coercive. Coercion results when normadve silence, enforced silence, or compelled speech elicit attitudinal conformity. The celebrated free speech theorist Meiklejohn wrote: "A cidzen may be told when and where and in what manner he may or may not speak, write, assemble, and so on. On the other hand, he may not be told what he shall or shall not beheve" (Meiklejohn 1961: 257). Meiklejohn posited a distinction between belief and expression, one preserved in law even in the U.S.'s restricdve legal and economic climate for workplace expression. It ignores, however, the possibility that being told when, how, and what to speak may amount implicitly to a constmction of belief. There is ample evidence from psychological research on attitudes that behaviors consistent with particular attitudes can both elicit those atdtudes and enhance their stength (Eagly and Chaiken 1993). Repeated exposure to attitude-relevant messages and normative suppression of counter-attitudinal messages may have similar effects. As a result, compelled speech and compelled silence in the presence of propagandistic organizational discourse may undermine individual autonomy of beliefs and attitudes. FREEDOM OF EXPRESSION IN THE WORKPLACE The broader implications of these dynamics for civil society are suggested by Noelle-Neumann's (1991) concept of a "spiral of silence" in pubhc opinion research. In broad terms, the spiral of silence refers to the pressure individuals feel to suppress their judgments when they find themselves holding minority views. Noelle-Neumann wrote: Individuals who deviate from the consensus are threatened with isolation and ostracism. .. . When people feel they are in the minority, they become cautious and silent, thus further reinforcing the impression in publie of their side's weakness, until the apparently weaker side disappears completely except for a small hard core that clings to values from the past, or until the opinion becomes taboo. (Noelle-Neumann 1991: 259) Bowen and Blackmon (2003) applied spiral-of-silence theory to the dynamics of voice and expressive acdvity in work groups. An inhibitive climate for workplace expression may contribute indirectly to the spiral of silence in broader pubhc opinion if it means that employees are exposed to a limited range of views on subjects that connect to political issues of the day. There is more than abstract speculadon; it is not hard to find examples where employees are held accountable or sancdoned if their opinions fail to match those of management. In one widely nodced case from the 1980s, an insurance companyfiredafifteen-year employee because he refused to sign a peddon suppordng an insurance reform measure in the state legislature favored by the company.^^ For individuals who spend much of their time and experience a large amount of their social interaction with adults at work, management-imposed viewpoint orthodoxy risks limidng their purview of public opinion, and in doing so indirectly contributes to spiral-of-silence dynamics in larger civil society. Implications The cmx of my argument is that the exisdng restricdve legal and organizational climate for expression in and around work dilutes fundamental individual rights to autonomy of thought and conscience, and compromises the health of the broader social-civic enterprise in which work and workplaces exist. Identifying and specifying the problem tums out to be easier than solving it. A detailed treatment of changes to legal and managerial regimes that would remake the landscape for workplace expression is beyond my scope. I offer here a few potendal modifications to law and management pracdce that would represent plausible remedies for the problem of excessively contrained workplace expression. Legal Rules. At the highest level of abstracdon (and with the broadest potendal effects), the legal climate for expression at and around work would benefit from dilution of the state acdon requirement in federal constitudonal law. Legal scholars have offered compelling arguments (e.g., Chemerinsky 1985; Reich 1991) that limiting constitutional protections (including rights to free speech) to situadons where the state acts is out of tune with the reality of contemporary lives lived within the often controlling domain of large private and semi-private organizations. Neverthe BUSINESS ETHICS QUARTERLY less, as a practical matter, an unraveling or serious reinvention of the state action doctrine is unlikely anytime soon. At a lower level of abstracdon, but sdll with large systemic imphcadons, lies the potendal diludon of the employment-at-will doctrine. Here, again, a broad sweep of repeal or widespread reform is unlikely in the near term, but incremental reform is plausible, given that the apphcadon of employment-at-will and the creadon of exceptions to it occur state-by-state through common and statutory law. One clear approach is the enactment by statutes of just-cause dismissal mles, which would limit grounds for terminadon and grant workers a procedural right to challenge a dismissal (McCall 2003). Another is the creadon and expansion of causes of acdon for wrongful discharge through conimon law, as courts recognize public policy exceptions to employment-at-will. Pointing to states where such exceptions are expanding, Ballam predicts condnued erosion of employment-at-will as a path to greater protecdon of individual privacy rights: [T]he uldmate privacy right is the freedom to define oneself. Being able to defme oneself involves far more than simply being protected from workplace surveillance or unwarranted drug testing. Freedom to define oneself really requires that individuals have maximum ability to make free choices with no negative consequences from their employers. (Ballam 2000: 686) Remedies are available that need not unravel core constitutional doctrines or dnker with fundamental premises of employment law. I refer here to the enactment of statutes that protect lawful expressive acdvides by employees that do not interfere significantly with the conduct of an employer's business. One form of protection comes through so-called "hfestyle discriminadon" laws protecdng off-work behavior from employer sancdon; as mendoned earlier, several states currently have narrow versions limited mainly to consumption of certain products (alcohol, tobacco). A rare example of a broader law is this provision found in a Colorado statute: It shall be a discriminatory or unfair practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours.^*^ The Colorado law exempts from protection behavior that is related to job responsibihdes or diat might involve a conffict of interest, but a law like this can significandy curtail employment-at-will as a threat to off-the-job expressive behavior. (On the other hand, I hasten to concede, such a law might encourage an unscmpulous employer to give no reason for terminadon, as employment-at-will stricdy observed permits, when the actual catalyst is off-work behavior.) A narrower approach than enacting broad "lifestyle" protecdons would involve expanding the reach of state laws that limit employer interference with individual pardcipadon in polidcal acdvides. Several states already have laws protecdng workers from employer efforts to influence voting behavior through coercion or indmidation (see Bingham 1994). Lastly, a remedy that involves changes in the interpretadon (rather than creadon) of law would have courts rethink how they weigh employee speech rights against employer prerogative in cases involving public-sector employment. Courts, FREEDOM OF EXPRESSION IN THE WORKPLACE I noted earher, apply a balancing test to determine when a public employee's right to speech on matters of "public concem" is outweighed by the need for an efficient and harmonious pubhc-sector workplace. Case law during the decades since the balancing test wasfirst fashioned points to an excessive tolerance by the courts for employer claims that employee speech is dismptive, as well as a highly restricdve view of the kind of speech that rises to the level of "pubhc concem." The difficuldes involved are highlighted by close votes in key Supreme Court cases creadng and applying the balancing test.^'' Management Practice. The most significant opportunides to expand free expression in and around work arguably lie with managers, not judges and legislators. Situadons where employees experience punitive consequences for expressive behavior mainly occur not because of laws and court decisions, but through the actions of employers who perceive expressive acts as threatening workplace comity, commercial prosperity, or reputational integrity. It isn't hard to imagine circumstances where expression can and does threaten legidmate employer interests in compelling ways. Troubling, however, are the numerous examples found in joumaUsts' accounts and (typically unsuccessful) htigation where individuals experience job detriment not because their speech concretely threatens legitimate employer interests, but because their acdons trigger gratuitous employer fears about the adverse effects of expressive behavior. Reform of the managerial impulse to hmit rather than encourage or tolerate expression begins with a change in employer mindset regarding the nexus between free speech and the employment relationship. The prevailing view of employment reladonships based on at-will principles starts with an assumpdon that an employer "owns" a worker's dme on the job and commitment to the employer, and is endtled to protect itself against employee acdons that bring harm to the employer. In simple terms, as Epstein (1984: 966) put it, "The employer is free to demand whatever he wants of the employee, who in tum is free to withdraw for good reason, bad reason, or no reason at all." The at-will system as a matter of law gives employers nearly unfettered discredon to define acceptable employee behavior, on and off the job. At-will employment also gives firms the incentive to treat even remote threats to commercial interests that stem from employee behavior as worthy of acdve deff ecdon. In roudne employment reladonships, the dynamics of this exchange in day-to-day pracdce are defined not so much by law as by employer perceptions of those threats—of the extent to which employee actions infringe on the firm's property and contractual rights to pursue its economic interests as it sees fit. Seen in its worst light, employment-at-will is a system where employees trade not just labor for wages, but fundamental liberiies for wages. The worst cases arise when firms insdnctively regard employee expression (with a hair trigger) as an unacceptable nuisance, a legal liability, or a threat to commercial prosperity. I argued earlier that aggressive limits to employee expression are more than inconvenient constraints on individual behavior; they adversely affect the health of BUSINESS ETHICS QUARTERLY civil society. These effects are midgated when employers arrive at judgments—at mindsets—that firm success is not so easily compromised by employee acts of political, artistic, hterary, or just idle expression. Employment-at-will gives firms the right to err on the side of discouraging or silencing expression that might conceivably threaten firm interests. Management discretion gives them the option to view the connecdons between individual expression, firm interests, and free society in more nuanced and deliberative ways. Summary The foregoing discussion invites an important qualification: There is analytical imprecision in treadng workplace expression in a monolithic fashion. As my review of the law on expression revealed, different expressive forms and contexts encounter varying regimes of limitadon; for example, in some circumstances the law treats employer discretion to sanction speech differently depending on whether the expression is on matters of public as opposed to employer concem. Accordingly, arguments for legal and managerial reform to remedy an overlay restrained climate for workplace expression calls forth the caveat that acts of expression vary in location, form, purpose, and regulation. Earlier (in Figure 1)1 distinguished acts of workplace-related expression by topic, venue, and publicness. These disdncdons point to connections between expressive constraints and remedies. For example, antidotes to a repressive climate for intemal discussion on matters of corporate concem are the province of managerial acdon by the firm's owners or executives. Limits to off-work expression by the individual acting as citizen rather than employee (but still subject to potential employer sanction) call forth civic rather than corporate remedies—modificadons of legal rights rather than managerial policies. A further contextual nuance is the question of one's position in the organization: An idendcal expressive act committed by a production worker versus an execudve-level employee may trigger different regulatory impulses from the firm. I conclude with theoretical implications: Would these remedies accord with theoredcal accounts of free speech? Recalling my earlier bifurcation of these theories, I would argue that limitadons on expression in the U.S. workplace represent a circumstance of which neither collectivists nor individualists would approve. At the same time, their perspectives on workplace expression won't align perfectly; distinctions among contexts and forms of workplace-related expression are vehicles for thinking about where individualists and collectivists may part company. Recall, for example, that collectivist theorists (e.g., Meiklejohn 1948/1965; Sunstein 1992) place their emphasis on the contribution of free speech to deliberative self-government. In light of research (mendoned above) on informal networks and polidcal activity, collectivists might frown on a system giving employers wide ladtude to constrain expression both at and beyond the workplace. At the same dme, a collecdvist cridque might well be a contingent one—^being, for instance, more willing to tolerate limits on expression that is topically work-related, and perhaps on expression that occurs within the workplace. Individualist theorists (e.g.. Baker 1989; FREEDOM OF EXPRESSION IN THE WORKPLACE Emerson 1963), who locate the value of free speech in principles of autonomy, self-fulfillment, tmth finding, and participation, would presumably be troubled by restricdons on expression that interfere with these goals—a view that would not be as contingent on the topical or locational characterisdcs of expressive acts. To say that the existing landscape for workplace expression does not accord with lofty theoretical views of the functions of free speech is more than just a rhetorical flourish; it sounds an alarm about the civic health of a society that treats free expression as a foundadonal value, yet gives employers imperious power to limit speech—^both at and after work—in ways that an autocrat might admire. Conclusion A generadon ago there was opdmism that employee rights were expanding not only as a matter of evolving pracdce, but as a veritable movement building toward radical change in corporate hfe. In 1974 an editor at the Harvard Business Review wrote: Within the management castle, as well as out in the woods and fields, there is growing support for employee rights.... [T]he notion of a "bill of rights" for corporate employees has been advocated in the Harvard Business Review and will doubtless find its way soon into other management journals. (Ewing 1974: 756) Ewing predicted a "sea change" in the social and intellectual environment of organizations (1974: 756). Thirty years later, it would be delusional to suggest that Ewing's predicdons have come to fmidon. The law in the U.S. (from an employment law perspective) has not significandy expanded its accommodation of employee expression, even as excepdons to employment-at-will have grown wider. Outside of academic writing, connecdons between speech, other civil liberties at work, and the state and health of larger civil society remain elusive. As Balkin (1990: 423) wrote in an essay chronicling the evolution of free speech doctrine in the twentieth century, "speech in the workplace is not considered speech in the same sense as polidcal or expressive speech generally, but is thought to be utilitarian, pedestrian, and incidental to the performance of work." It can be said that freedom of expression in the public sector workplace in the U.S. has expanded over the last four decades. As discussed earlier, this follows from basic constitutional doctrine protecting civil liberties where govemment acts. However, the climate for employee speech in the private sector is, if anything, less accommodating than it was a generation ago. The proposition that people at work deserve greater rights to expression than the law, management pracdce, or convendonal wisdom allow is not a Utopian call for a fundamental transformadon of economic relations in employment, or even for a broadly democratized workplace. It is merely an assertion that a market economy can still flourish when adults sell their time and their labor but not all of their liberties. Where suppression of one's power to think, speak, and dissent is conventionally accepted in workplaces, the ideology of management is given license to mn free, not just at work, but every BUSINESS ETHICS QUARTERLY where. This places at risk the liberty interests of individuals, but also jeopardizes the health of civil democracy in community and society. Jusdce Hugo Black put it this way over a half-century ago: "Our own free society should never forget that laws which sdgmadze and penalize thought and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended. We must have freedom of speech for all or we will in the long mn have it for none but the cringing and the craven."^* Notes I am grateful to Amanda Cardco for research assistance, and I thank Cynthia Estlund, Rebecca Brown, and Ingdd Fulmer for helpful comments on earlier versions of this paper. 1. Park's comments on her firing appeared on her weblog at http://troutgirl.com/blog/ index.php?/archives/46_Shitcanned.html and http://troutgirl.com/blog/index.php7/archives/48 _Consequences.html (accessed February 21, 2005). 2. The Supreme Court of Connecticut concluded that a state law barring employers from disciplining employees who exercise First Amendment rights applies to private workplaces, but doesn't apply to Cotto's act of omission because (as the court's majority held) refusing to display a symbol is not a constitutional issue (see Frisman 1999). Connecticut's law is unique among the states in expressly recognizing free speech rights at work—Grodin (1991: 24) called it "the most sweeping recognition to date of 'First Amendment' values in the private sector workplace." 3. Scanlon (1972: 206) also includes "some bombings, assassinations, and self- immolations" in his definition, presumably to illustrate the breadth of expressive acts that might be intended to convey some proposition or attitude. Seeking to defme a class of expression that ought to be protected by a legal doctrine of free speech, he subsequently excludes acts that are violent and arbitrarily destructive. 4. United States v. Cruikshank, 92 U.S. 542 (1875); Vtrginia v. Rives, 100 U.S. 313 (1879); The Civil Rights Cases, 109 U.S 3 (1883). Cherminksy (1985) reviews this history. 5. Payne v. Westem & Atl. R.R., 81 Tenn. 507: 519-20 (1884). Calling it a myth that employment-at-will originated with late nineteenth-century court decisions, Ballam (1996) argues that it was in force throughout the U.S. well before its adoption by the courts. 6. An example is dismissing workers shortly before they will qualify for an anticipated benefit, such as a pension (Falcone 1999). The implied covenent of good faith and fair dealing was recognized by only eleven states as of early 2001 (Muhl 2001). However, according to Kittner and Kohler (2000: 290), courts worry that widespread acceptance of the covenant of good faith and fair dealing "would completely undermine the at-will rule and make every discharge potentially reviewable by a third party." As a result, they say, it is potentially the most powerful of employment-at-will exceptions, even if still the least enforced. 7. Connick v. Myers, 461 U.S. 138 (1983). 8. Promise of employment or other benefit for political activity, 18 U.S.Code § 600 (accessed February 16,2005, at U.S. House of Representatives Office of the Law Revision Counsel, http://uscode.house.gov/). 9. Amendments to the federal Hatch Act in 1993 removed many restrictions on off-duty involvement in political activity, refocused the Act's on policing abuses, and strengthened provisions aimed at discouraging political coercion of employees (Bloch 2005). FREEDOM OF EXPRESSION IN THE WORKPLACE 10. National Labor Relations Act, 29 U.S.Code § 157 (accessed February 15,2005, at U.S. House of Representatives Office of the Law Revision Counsel, http://uscode.house.gov/). 11. Davis V. Louisiana Computing Corp., 394 So. 2d 678, La. Ct. App. (1981). 12. Shovelin v. Central New Mexico Eiec. Co-op., Inc., 850 P.2d 996 (N.M. 1993). 13. Connecticut General Statutes § 31 -51 q. 14. South Carolina Code Annotated § 16-17-560. 15. Some legal scholars argue that the climate for workplace speech is further constrained by the effects of harassment law regulating a "hostile work envirotiment" (based on sex, race, or religion). The argument is that vague standards addressing what is or isn't harassment chills expression because employers facing potential liability for employee speech have no choice but to overregulate (Browne 1991; Volokh 1995). Others counter that the collision between harassment law and the free speech is overstated because the standard for a hostile environment is not as vague as critics contend (Sangree 1995), and because harassment is conduct that involves a captive audience and incites tangible harm, and so falls outside of or merits a lower degree of free speech protection (Oppenheimer 1996). 16. The phrase "in the U.S." is an important qualifier because the system of employment- at-will that underpins U.S. labor law is uniquely American; most industrialized nations, and many developing countries, have stronger protections against dismissal without just cause or notice (Summers 2000). Accordingly, there is a demonstrable difference between the U.S. and many other advanced economies in the balance between at-will arrangements and due process protections. Furthermore, Intemationai Labour Organization Convention 111 (ILO 1958), which has been ratified by 165 nations (but not the U.S.), cites "political opinion" as an unacceptable basis for employment discrimination, along with race, sex, religion, nationality, and other individual characteristics (Article 1). 17. Although Mill didn't speak explicitly of a "market" for speech, he saw truth in the service of liberty and democracy as emerging from an uninhibited flow of ideas. For example: "Complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right" (Mill 1859/1974: 79). 18. Abrams v. United States, 250 U.S. 616: 630 (1919). 19. Sunstein, no slouch himself, called Meiklejohn "the greatest philosopher of the First Amendment" (1992: 301). 20. Bork (1971) articulated an extreme version of Meiklejohn's argument, suggesting that only speech that is explicitly political should be protected, which excludes "scientific, educational, commercial or literary expressions as such" (Bork 1971: 28). Bork later broadened his view of political speech to include scientific and moral debate, but not artisitic speech (Bork 1978). Meiklejohn, it should be noted, expanded his view of protected speech to include educational, scientific, literary, and artistic expression to the extent that it promotes knowledge and sensitivity to human values, which leads people to make better political decisions (Meiklejohn 1961: 256-57). 21. The "hard cases" typically address such issues as obscenity, hate speech, commercial speech, telecommunications policy, funding for the arts, and political campaign regulations; see Fiss (1996a, 1996b); Sunstein (1993). 22. Pickering v. Board of Education, 391 U.S. 563: 568 (1968). 23. Connick v. Myers, 461 U.S. 138: 150 (1983). 24. Rankin v. McPherson, 483 U.S. 378: 388 (1987). 25. Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir., 1983). 26. Colorado Revised Statute 24-34-402.5 (accessed April 19,2005; http://198.187.128.12/ colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0). BUSINESS ETHICS QUARTERLY 27. A prime example is the 5-4 outcome in Connick v. Myers, 461 U.S. 138 (1983). 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