The right to freedom of speech is at the bedrock of our nation’s birth and its continued vitality. Like many of our rights as citizens of the United States, free speech is not absolute. Lawyers and courts wrestle with its limits regularly. The right to free speech often conflicts with other rights, such as the right to own private property, to be free from speech that is closely related to unlawful conduct, and others.
Federal free speech protections apply only to the government. The First Amendment to the U.S. Constitution, for example, does not regulate private employers. However, it does come into play with respect to government employers (the free speech rights of public sector employees are beyond the scope of this article).
California includes in its Constitution a right to free speech that is broader than the First Amendment. The California Constitution’s protections may extend to private places that federal protections do not reach. The California Supreme Court recently reaffirmed California’s broad free speech protections in Fashion Valley Mall v. NLRB. There, the Court upheld the right of union workers to distribute leaflets advocating a boycott on certain private property. This case, while not directly addressing “employment law,” is significant to employers, particularly those that operate in malls or other private property accessible to the public. So, what free speech rights do employees have in private businesses?
The Right to Boycott a Business on Private Property
A boycott, advocating that customers refrain from patronizing a business, plainly is a form of speech. Unions and other groups urge boycotts to persuade businesses to change their views or actions. The Constitution prohibits the federal and state governments to ban peaceful picketing, boycotts and the like on state property. However, it is lawful to impose “time, place and manner” restrictions to keep order, etc.
Before and after the Fashion Valley decision, demonstrators cannot lawfully invade an office that is not in a public area to peacefully protest, claiming they have the right to do so because of “freedom of speech.” Rather, the Fashion Valley opinion deals with the right to protest in a mall – private property that is open to the public.
The legal issue in Fashion Valley arose when union employees of a newspaper picketed at a Robinson’s-May retail store. The store was located at the Fashion Valley Mall in San Diego. The employees’ goal was to pressure Robinson’s-May customers not to shop there, because the retailer advertised in the newspaper. The mall had a rule that prohibited public demonstrations urging patrons not to shop at a mall establishment. When the mall ejected the union protestors, the protestors filed an “unfair labor practice” charge with the National Labor Relations Board (NLRB). They accused the mall of violating the picketers’ right to protest matters covered by the National Labor Relations Act (NLRA). The NLRB agreed with the picketers, ordering the mall to rescind its rule.
Fashion Valley appealed the NLRB’s decision to a federal court of appeals. That court asked the California Supreme Court to answer a question of state law: does the mall’s rule violate the California Constitution’s guarantee of freedom of speech? The California Supreme Court answered, “yes,” holding that malls are a public forum, and the California Constitution extends to private property. The Court decided this case 4-3, over a vigorous and scholarly dissent by Justice Chin. The majority relied on the Court’s 4-3 decision in Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899. In that case, the Court decided that the California Constitution protected speech on private property, even if the federal Constitution did not.
The Effect of the Fashion Valley Decision on the Workplace
Because the California Constitution protects speech on certain private property, employers rightly may wonder how Fashion Valley affects speech at the workplace. The answer probably is: not much.
It is true that Fashion Valley may protect picketing by a business’s own employees within the mall near the store itself. (The opinion itself addressed third party boycotting.) Thus, employees seeking to handbill about protected subjects likely may be able to do so in the mall rather than on an adjacent sidewalk far from the employer’s business.
But the Fashion Valley decision left undisturbed cases involving the regulation of boycotting and picketing on private property other than shopping malls. For example, courts have held that stand-alone retailer stores on private property need not permit picketing on the privately owned sidewalk outside the store or in the parking lot. In fact, the Supreme Court recently decided that an apartment complex could bar hand-billing on its property because the public did not have free access to the complex. Therefore, even after Fashion Valley, it is unlikely that protesting in furtherance of a boycott can be staged inside an office building, or even on private property not generally available for public use.
Protected Speech in the Workplace
Even at a mall, employers have the right to control employees’ speech within their businesses. For example, employers can prohibit employees from engaging in speech during work time that is not work-related. Employers also can regulate use of their communication systems, such as their telephones and e-mail servers. Similarly, employers must take action against employees who insult a manager, engage in speech that would violate an anti-harassment policy, etc. The courts have refused to recognize verbal harassment as “freedom of speech.”
Employers also may demand loyalty at the workplace. For example, an employee cannot avoid discipline in the name of free speech by bring rude to customers, or by denigrating the employer’s business to customers while working. In Jersey v. John Muir Hospital, the employer lawfully fired an employee who sued one of its former patients for personal injury, even though the right to access the courts is protected by the First Amendment and the California Constitution.
However, regardless of the California Constitution’s reach, the law protects certain employee speech in the workplace. For example, an employer cannot take action against employees who complain about safety, unlawful discrimination, or who engage in other speech that is “protected” from retaliation. The Labor Code also protects employees who speak with each other about working conditions or wages. Under federal labor law, employers generally may not regulate employees from speaking about unions on their breaks, or in non-public areas. “Whistleblowers,” employees who complain to the government about employers’ illegal conduct, also are protected from retaliation.
The law also protects employees’ speech outside the workplace to some extent, even from private employers’ actions. For example, the law prohibits employers from taking action against an employee for lawful, off premises activity, at least with respect to matters addressed under the Labor Code. The law also prohibits discrimination against employees based on their political activity. Therefore, for instance, if an employee volunteers time for a political candidate whom the employer does not support, the employer may not sanction the employee for doing so.
Freedom of speech is a right that should be cherished by all Americans, employers and employees alike. However, as with many areas of employment law, the right to freedom of speech involves a number of sometimes-conflicting laws, interests, and rights.
In the main, private sector employers need not worry about infringing on employees’ Constitutional rights. Rather, most speech protections are based on statutes and case law. Employers therefore must understand what speech they may regulate, and what speech must be permitted. Responsible employers will ensure they have anti-retaliation policies to help protect employees from negative action based on protected speech. Additionally, non-solicitation policies may help employers curtail third party and employee speech that might otherwise be lawful.