8 August 2007
Should we have to give up our First Amendment rights under certain circumstances?
Posted by Darrell under: Rantings Of An Outdoorsman .
Tom Remington, of Black Bear Blog fame, recently posed the question “Should we have to give up our First Amendment rights under certain circumstances, like while working for a private entity?”
The first amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
From a legal standpoint (at least currently), it is my understanding that, there are certain circumstances when ‘freedom of speech’ (as many citizens think of it) is not applicable. Even in the good ole USA, you cannot say ‘anything’ you want. Don’t agree? Simply read the rather broad definition of ‘domestic terrorism’ in the Patriot Act. If you honestly feel that you can say ‘anything’ you want with the full protection of the First Amendment, you are seriously mistaken. So mistaken, in fact, that you might find yourself with a one way ticket to Cuba.
What about, though, when we work for a private entity? Should we have to give up our First Amendment rights then? From a legal standpoint, there is not really a question here. Employees in private industry have no legal rights to freedom of speech and private corporations are free to censor speech of their employees.
The question then, is should it be this way? Is this the way that the founding father’s intended it? My gut response is “yes”. Since some of these men were undoubtedly businessmen with various people in their employ, they would understand the need to censor their own employees.
As a businessman, I completely understand the need to censor my employees. I have been forced to terminate employees (fire not kill) for comments they have made to my customers. I’ll never forget a young lady that worked for me years ago. At the time, I had a retail business that depended upon repeat customers. This young lady, upon listening to an excited customer tell us about her recent engagement, asked the ‘previously’ excited customer “Why did he buy you such a small ring?” Amazingly, I didn’t fire her for this comment. I took her aside and patiently explained why that comment was inappropriate. A few hours later I listened in horror as she asked one of our regular customers “When are you due?” The customer was confused and before I could interfere, my diligent employee clarified “When is your baby due? You are pregnant aren’t you?”
Am I ever glad that the First Amendment didn’t apply to this situation! I had the legal right to terminate this young ladies employment and I exercised that right. I remember her so clearly because of what she said to me when I fired her “You can’t fire me for what I said! This is a free country.” I replied “You’re right. It is a ‘free’ country and I’m ‘free’ to fire you”. Since that time, I’ve had to fire numerous employees due to things they’ve said (or written) to customers or other employees.
So I strongly feel that private organizations should be able to censure speech of employees. Yet, I was also dissapointed that Jim Zumbo was fired. Am I simply a hypocrite? I don’t think so. You see, my employees are fully aware what the limts to their free speech are. They are not allowed to make disparaging remarks to (or about) customers or other employees. Generally (and depending upon the circumstances) they are allowed a second chance - if they unintentionally screw up.
My dissapointment with Jim’s termination is directly related to his position. He was writing a blog post. Maybe Jim had a well defined set of rules for his blog, including what topics he was free to post his opinion on and which topics were either tabu or, worse, only open for discussion if Jim expressed the opinion of the magazine (which was advertising the blog as Jim’s). If this is the case, and Jim knowingly violated his rules of employment, than he deserved to be terminated.
However, if Jim deserved to be terminated than I feel misled as a consumer. I honestly feel like Outdoor Life touted Jim’s blog as being Jim’s. They made me think that what I read was Jim’s opinion. I knew Jim was being paid. Yet, I never thought of him as a paid actor - just endorsing a product, or in this case, the political stance of Outdoor Life. But wait, he wasn’t. It was his opinion. Outdoor Life admitted this when they fired him. We do not share Jim’s opinion as stated on HIS blog, etc etc.
So, to recap, Outdoor Life had the legal right to fire Jim. I wholeheartedly agree that private companies have the right to censure employees. Yet, giving someone a job that is based on expressing their opinions and then firing them for doing so is wrong. If your employees aren’t really free to express their own opinions, then don’t try to mislead the public into thinking they are reading (or listening) to the opinion of an individual they may trust.
Ok, there my logic is - feel free to tear it apart.
7 Comments so far...
Kristine Shreve Says:
8 August 2007 at 4:18 pm.
I completely agree with you. When you work for someone, in any capacity, it is a recognized part of the job that you support the company in everything you write and to everyone with whom you speak. They’re paying you a salary, which is in part paid for your support of the company goals and efforts.
I also agree that someone who is being paid to write their opinion should be allowed to express that opinion. They should also be prepared to take the heat if people disagree with their opinion. In the case of Jim Zumbo, I think he would and has taken the heat, but his employers and sponsors were reluctant to stand behind him while he did. I understand where they’re coming from, because they have a responsibility to keep their businesses running and making a bunch of customers mad is not the best way to do that. So I think there has to be a balance.
Take my own situation. Neither of the blogs I write are personal blogs. One is for the company for which I work. The other is for an organization that I hope will attract lots of people. On neither of these blogs will my speech be as free as it would if I were writing just as myself for my own amusement. No one has told me I can’t write what I want, I just use commonsense and realize there are some subjects I shouldn’t address because they could have a negative effect on the organizations and the public’s opinion of them.
I’m not sure that all made sense. I may try and clarify this later.
Phillip Says:
8 August 2007 at 4:22 pm.
Gotta agree with you here, Darrell.
There’s a line, or should be, between private property/business and the long arm of the government. That line gets blurred a lot, but bottom line is, I do not expect myself or anyone else to have any right to free speech if that speech is offensive to me or my business. If customers or vendors do not agree with that stipulation, they are free to patronize other businesses.
The same goes, by the way, for most of the other constitutional rights. For example, if I do not want firearms in my place of business, then there is no 2nd amendment right for you to carry there. Leave it outside, or do your business elsewhere. (Or, more likely in my own case… if I require all of my employees to carry openly in my place of business, then that is a stipulation of employment. If a job applicant is ineligible to carry a firearm, then he needs to put in his application elsewhere.
My business should be no different from my home, unless I am accepting federal funding to run that business.
I do recognize the can of works this would open, especially as pertains to ERA and racism. The line may get a little blurry, and I detest bigotry (I can’t understand, tolerate, or condone racial/religious hatred), but at the same time, I feel very strongly that it is not the government’s job (state or federal) to force someone to associate with someone who they don’t want to associate with.
It should be the duty of the consumer (you and me and everybody) to determine and drive “morality” in our society. If a business establishes objectionable standards, then we should avoid that business. If it is truly the “will of the people” that we all live in harmony and equality, then it stands to reason that most businesses contrary to that common will shall fail.
But that’s pretty much a pipe dream. In the meantime, I’d like to keep whatever property rights I can…and that includes telling my employees (or customers, for that matter) what they can and can’t say in my business and on my time.
Matt Says:
9 August 2007 at 10:40 am.
That’s why I hire a lot of guys who don’t speak English. If they say anything stupid, no one understands it.
Jon Bryan Says:
10 August 2007 at 8:22 pm.
Down here in Texas, we say that if you work for the brand, you support the brand! I once worked for a large and very famous computer company and physically threw a customer out of our building for disparaging our company. I violated his right to free speech, but nothing was ever said of the incident. Also, he remained a customer!
Darrell Says:
15 August 2007 at 3:03 pm.
Matt, interesting point. Who needs censure when you can understand them anyway?Jon, I’ll make sure I don’t disparage any company you ever work for! My guess is that the customer was probably doing something more than exercising free speach when you decided to toss him?
Seriously, though, I appreciate everyone’s comments. Kristine, your comments make me think about the ‘responsibility’ that a writer may have (regardless of any rights). Phillip, your comment really got me to thinking beyond the first amendment. For instance, a convicted felon doesn’t have the legal right to ‘buy’ a firearm.
Tom Remington Says:
16 August 2007 at 2:46 pm.
Darrell, Well stated and yet you are torn between being a businessman and a regular Joe consumer. You shared with us first how you needed to protect your business. It was quite clear in your explanation that with each case you weighed the consequences of the person’s actions against what effect it had on your business. Once that person “crossed the line”, they were terminated.
In Zumbo’s case, we don’t know the circumstances and we can only use conjecture. You are tossed with wanting to protect Jim Zumbo (Joe Customer) and understanding the rights of Outdoor Life(the Businessman). Could it be that somehow Jim Zumbo is a bit more important than say just a store employee? (Just raising questions for debate here.)Let’s say not.
We can only assume that OL also made assessments and decided that Zumbo “crossed the line”. Were there any guidelines laid out before Zumbo began blogging? Had he spouted off before about highly controversial issues and got away with it? Should OL have been proofing everything before Zumbo put it up? Wasn’t he editor or something like that?
My guess and only a guess is no on most accounts and that is why OL was slow to react. Had they been on top of the situation, they would have made their ultimate decision based strictly on what he said not waiting until they began to assess the damage and then decide.
In your case, it would be like if you decided after the employee asked again about being pregnant, you found out three days later, the pregnant girl was the niece of President Bush. THEN, you decided you had to do something. It makes your decision harder to accept.
As you can see, it is not quite as cut and dry as some people want to think. For you Darrell, it is a bit easier because you have worn both hats, yet you struggle. Imagine how those who have never been in business see this? Or those who have only been in business?
Kristine wrote:
“On neither of these blogs will my speech be as free as it would if I were writing just as myself for my own amusement. No one has told me I can’t write what I want, I just use commonsense and realize there are some subjects I shouldn’t address because they could have a negative effect on the organizations and the public’s opinion of them.”
This is perhaps the most intelligent response I have read about this entire debacle and the subject of free speech. “Common sense” and “realization” are key issues. It appears, according to Jim Zumbo himself, that he lost his common sense from being overtired from being in the field all day and didn’t “realize” what the heck he was doing. He had to live with the consequences.
Legally, I think everyone is okay here. Was it handled in the best manner? Probably not.
I think the key to the discussion of the First Amendment isn’t a case of knowing whether or not a person has the absolute right to free speech. It’s understanding the consequences of such actions.
In theory, Zumbo was no a victim of the stripping of his right to free speech. He still retains that right and he was not charged with any crime for making his initial statements.
I will almost guarantee that if Jim Zumbo had waited until morning, he would have “REALIZED” what the consequences of rash statements might do and his judgment for deciding what is “COMMON SENSE”, would have been sharper.
Darrell Says:
16 August 2007 at 4:32 pm.
Tom, very well put.
On one hand I realize that Outdoor Life had the right to fire Jim Zumbo. On the other hand I feel misled about Jim Zumbo’s blog. I thought that Jim’s blog was supposed to be about Jim’s thoughts and feelings. I wrongly assumed that, as a ‘blog’, Jim was free to write about his hunting experiences and opinions. It looked like Jim felt this way, too. We were both wrong, obviously.
The next time someone famous gets canned for writing their opinion on “their” blog (which is owned by someone else) no one will be shocked. In the meantime, I realize that company owned blogs are probably being heavily censured and I may or may not be receiving the true opinion of the writer.
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