Wednesday, September 9, 2009

Bloggers Find that the First Amendment Only Goes So Far

Most Americans probably know we have this thing called the First Amendment, and it involves the right to "freedom of speech." But many Americans might be surprised to learn how little protection the First Amendment provides in the employment arena.

That becomes alarming as more and more Americans--many of whom have jobs--express themselves through blogging and other forms of "new media."

Some bloggers tackle the problem by writing anonymously. But CNN reports that it is becoming increasingly difficult to remain anonymous on the Web. And the cases of folks being fired because of their blogs are piling up.

I know because I am one of those folks.

CNN reporter John D. Sutter spotlights two women who lost their jobs because of their blogs. One of them had drawn a sizable audience in Pittsburgh, Pennsylvania, while writing anonymously as PittGirl for Pittsburgh magazine and on her blog, That's Church. Shortly after outing herself as Virginia Montanez, a 35-year-old married mother of two, "PittGirl" lost her job at a nonprofit organization called NEED.

Her great sin? She has a razor sharp--some might say snarky--sense of humor. And she has written critically, at times, about the mayor of Pittsburgh.

The second canned blogger is Heather B. Armstrong, who wrote under her real name at a blog called Dooce. She got fired not long after her employer discovered her online work, and "Dooce" has become Internet slang for getting fired because of your blog.

Armstrong apparently did not pursue legal action in the wake of her termination. And Montanez indicates on her blog that she does not plan to seek a legal remedy either.

It's just as well because the First Amendment, as it's been interpreted so far, probably would not protect them. If you find that troubling, join the crowd.

The biggest problem for Montanez and Armstrong is that they both apparently worked for private employers. And while this runs contrary to many Americans' sensibilities, the First Amendment does not protect those who work in the private sector.

David L. Hudson Jr. has written an excellent article on blogging at Here is how he describes the current state of the law:

Private employees do not receive the protections of the First Amendment because there is no trigger of state action. The provisions in the Bill of Rights, including the First Amendment, apply as limitations only against government actors, such as public employers. Private employees would need to rely on contractual-based remedies or a state statute that might provide protection.

One of Armstrong's problems is that she wrote about people and activities at work. She has cautionary words for those who might consider doing the same thing:

I started this website in February 2001. A year later I was fired from my job because I had written stories that included people in my workplace. My advice to you is BE YE NOT SO STUPID. Never write about work on the internet unless your boss knows and sanctions the fact that YOU ARE WRITING ABOUT WORK ON THE INTERNET. If you are the boss, however, you should be aware that when you order Prada online and then talk about it out loud that you are making it very hard for those around you to take you seriously.

Public employees are protected by the First Amendment, particularly if they are writing about matters of public concerns. Here is how Hudson describes it:

Public employers are subject to the First Amendment. Many public-employee cases are governed by the so-called Pickering-Connick test. In Pickering v. Board of Education (1968) and Connick v. Myers (1983), the U.S. Supreme Court made clear that public employees can speak out on matters of public concern. If an employee’s speech touches on a matter of public concern—issues such as racial discrimination or governmental corruption—then the courts apply a balancing test. The employee’s interest in free expression is weighed against the employer’s efficiency interests. If the expression causes disruption at the workplace, many courts will tip the scales in favor of the employer.

I've only read parts of Montanez' blog, but she might have a First Amendment case if she decided to pursue it. The nonprofit organization where she worked perhaps has received public funds, and that could make her a public employee. Her criticisms of the mayor could be considered matters of public concern. If she were to pursue a case, it might help bring some much-needed clarity--and fairness--to this area of law

As for me, my termination at the University of Alabama at Birmingham (UAB) after 19 years on the job, presents classic First Amendment issues. I was a public employee. My blog focused on judicial and governmental corruption, clearly matters of public concern. I did not identify myself as a UAB employee or write about any people or activities in my workplace. I did not disrupt the workplace.

Advances in communication technology seem to have caused a clash between two broad legal ideas--"freedom of speech" vs. "at will" employment. Many states, including Alabama, are "at will" states, meaning an employer can fire you for almost any reason--as long as it isn't discriminatory.

Imagine that you have a Facebook page and write often about your love of the Boston Red Sox. Your boss, a New York Yankees fan, stumbles upon your page and fires you for being a Red Sox fan. Or imagine that you state on Twitter that you believe Grand Funk Railroad is the greatest rock band of all time. Your boss, a huge Rolling Stones fan, takes offense and decides to fire you.

Could your boss get away with this? Under the current law, the answer probably is yes. If you are in a protected class under discrimination law--race, gender, age, national origin, ethnicity, religion, disability--you might have grounds for a lawsuit. If you are a standard-issue, able-bodied white guy under the age of 40 (SAWGU-40), you probably would not.

In fact, SAWGU-40s have almost no protections in the workplace at all. If I were an SAWGU-40, and I used to be one, I probably wouldn't write anything on the Internet. Heck, I probably wouldn't sign my real name on an e-mail to my mother.

Things aren't a whole lot better in the workplace for folks who aren't SAWGU-40s. In our baseball scenario above, let's imagine that you are a black, female, 55-year-old Hindu, whose mother was from Kazakhstan--and you have multiple sclerosis. Let's imagine that your Yankees-loving boss fires you because you are a Red Sox fan.

Sounds like a slam-dunk discrimination case, right? Well, maybe not. A key word in most discrimination cases is "comparator." This refers to someone in a comparable position who has been treated more favorably than the complainant. But what if the boss treats all Red Sox fans badly--regardless of race, gender, age, and so on?

That might make it tough to win a discrimination case. You probably could file a lawsuit and cost your former employer all kinds of headaches, money, and (hopefully) public shame. Because of financial and public pressures, you might garner a nice settlement and get your job back. But would you prevail on the merits? Not necessarily.

Does this sound ridiculous? It should. That's because the notion of "at will" employment is barbaric, in what is supposed to be an enlightened society. And most Americans have no idea how weak First Amendment law actually is.

Will this change any time soon? New technology, and cases like those involving Virginia Montanez and Heather B. Armstrong, might force change. David L. Hudson Jr. writes: "This is a developing area of the law that merits close attention."

Let's hope the attention, and change, come sooner rather than later.

1 comment:

AAW said...

Great post, Roger.