{"id":34977,"date":"2016-03-31T19:28:25","date_gmt":"2016-04-01T00:28:25","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html"},"modified":"2017-12-29T14:21:33","modified_gmt":"2017-12-29T19:21:33","slug":"freedom-of-speech-in-the-workplace-the-first-amendment-revisited","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/law-library\/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html","title":{"rendered":"Freedom Of Speech In The Workplace: The First Amendment Revisited"},"content":{"rendered":"
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One question that frequently comes up during a discussion of employment law issues is whether employees have freedom of speech in the workplace. The answer depends on whether the employer is a public or private entity, the type of speech involved, and the employee\u2019s position.<\/p>\n

No Constitutional Freedom of Speech in the Private Sector<\/b><\/p>\n

Employees in the public sector \u2013 who work for governmental entities \u2013 have First Amendment rights in the workplace, subject to certain restrictions<\/a>. The case law that has developed over time regarding First Amendment rights in the workplace has come from the public sector, as the government is directly affecting employees in public sector cases. Private citizens do not enjoy the same protections.<\/p>\n

Other Freedom of Speech Issues in the Private Sector<\/b><\/p>\n

Employees who work in the private-sector do not, as a rule, have First Amendment protection for their speech in the workplace. On one level, a private sector employer could take the absence of a direct First Amendment right as providing free rein to discipline, terminate or retaliate against employees for their speech in the workplace. Before doing so, however, the private sector employer should take into account the effect of the anti-discrimination laws<\/a> such as Title VII, RCW 49.60 (the Washington Laws Against Discrimination<\/a> or \u201cWLAD\u201d), whistle blower laws<\/a>, and various local laws.<\/p>\n

These laws provide a level of protection for certain types of expression in the workplace, and thus should be considered even if the right of speech associated with these laws is not a \u201cFirst Amendment\u201d right per se. For example, punishing an employee because of his religion is not technically a First Amendment violation in the private sector, but it would be a violation of the anti-discrimination laws. Conversely, the anti-discrimination laws prohibit certain types of expression on the part of employers, such as comments that constitute sexual or racial harassment, thereby putting a limit on \u201cfree speech\u201d in the workplace.<\/p>\n

The Bottom Line<\/b><\/p>\n

Even though the First Amendment free speech criteria do not apply to private employers, determine if there is some other interest that governs the employee\u2019s ability to speak freely. The following are some examples:<\/p>\n