Free Speech in the Workplace

Freedom of Association

Closely tied to the freedom of expression is the freedom of association. A citizen of the United States has a constitutional right to associate freely—or to choose not to associate with—anyone else. This right has not always been protected as vigorously as it is today, with anti-Communist laws and oath of office requirements in the 1950s as perhaps the most recent example. The right to associate is closely tied to the right to free expression, as often like-minded individuals are drawn to organize on behalf of whatever position or platform they might wish to advance.

The analysis of free association rights for employees is largely the same as that for free speech. In the absence of other state or federal prescriptions to the contrary, a private employer may not base employment decisions on many outside affiliations—in other words, employers are prohibited from choosing to hire (or retain) or terminate employees who associate with most other groups. While this is constitutional, there are a number of other restrictions that constrain an employer in this regard. First, an employer who terminates or takes any other negative employment action against an employee on the basis of speech or association protected by the Civil Rights Act can face stiff penalties in the form of damages from lawsuits brought by aggrieved employees (often with the assistance of the Equal Employment Opportunity Commission). Second, some states or localities have laws that protect employees from termination without cause. Finally, association with organized labor is further controlled and protected under federal law.

Global Perspective

The First Amendment is not unique when compared with other declarations of free speech rights, though the breadth of free speech rights afforded to American citizens is broader than that in most other countries. Article 19 of the Universal Declaration of Human Rights, promulgated by the United Nations, recognizes the importance of free speech and guarantees to everyone the freedom of expression, which specifically encompasses freedom of the Press.

While some countries have adopted similar language, many others have not. Even in those countries that have adopted similar rights, the enforcement and interpretation of the right of free speech is often less vigorous than it is in the United States.

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