Free speech at work is a fundamental right
Free speech at work is one of the big three issues the firm cares most deeply about. (The other two are due process and equal justice. And of course, unions are essential to all three.) The firm recently filed an important motion in the free speech case of Gunter v. Jackson Public Schools, which gives a perfect occasion for discussing some important free speech ideas. This will probably be a series of blog posts, so stay tuned.
The First Amendment limits what government can do, not private companies.
The first key idea to understand is that the First Amendment’s limitations only apply to government action, not private companies. In fact, it is not just people, but also private companies which are protected against government violations of free speech.
What this means is that the First Amendment will have no bearing on, for example, how Facebook punishes or regulates the speech of its users, or how Walmart punishes or regulates the speech of its employees. In fact, if Facebook or Walmart want to take a political stand on an issue and censor users or employees that disagree, the government and the courts typically cannot intervene because that would infringe the free speech rights of Facebook or Walmart.
There are exceptions, and private employees also have free speech rights of certain kinds, including whistleblowers which are protected by specific laws. So do not assume that a private employer like Walmart can do whatever it wants to employees that speak out in ways it does not like. But that has nothing to do with the First Amendment.
The bottom line for our purposes here is that, when you are talking specifically about the First Amendment and freedom of speech, you must always keep in mind that the key question is
what is the government doing. The First Amendment only limits governmental action against free speech.
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