Editor’s note: University of Illinois labor and employment relations professor Michael LeRoy is an expert on employment law. In an interview with News Bureau business and law Editor Phil Ciciora, LeRoy discusses speech rights of employees and employers.
Some professional football players argue that the NFL is violating their speech rights by compelling them to stand during the national anthem. Some critics also contend that ABC is violating the speech rights of comedian Roseanne Barr when they canceled her show. What do these two seemingly disparate parties have in common with respect to their First Amendment rights at work?
Well, to be blunt, neither party has First Amendment speech rights in these instances. Employees in private workplaces do not have a First Amendment right – even though they often mistakenly think that they do.
The First Amendment states: “Congress shall make no law … abridging the freedom of speech, or of the press.” Neither the NFL nor ABC is the U.S. Congress; nor are they a government entity – a state, for example – where First Amendment rights would apply.
Do Barr or the NFL players have any sort of recourse to challenge the actions of their employers in court?
They do have a few possible legal challenges, although these are longshots – the football equivalent of a “Hail Mary” pass.
The “Roseanne” reboot was filmed in Los Angeles, and the state of California has very broad speech rights for private workplaces. California law bans private employers from discriminating against workers due to their political views, something that’s called “viewpoint discrimination.” But the law has exceptions. If a person participates in a political activity that creates a conflict of interest with the employer’s business, the employee is not protected. Barr’s tweet was overtly political, and ABC has deemed the content of the tweet itself as “repugnant” and a likely threat to its bottom line. Keep in mind that ABC’s parent company is The Walt Disney Company. In this case, the law seems to be on the studio’s side.
It’s interesting to note that NFL protesters would likely have the same treatment under California law. If they were to kneel during the national anthem of a nationally televised game, you could construe that as a form of political expression. But the NFL would likely be successful in arguing that players cannot assert speech rights on the playing field or on their commercially licensed broadcasts.
New York state, however, might be the more relevant venue, since that’s where both ABC and the NFL are headquartered. Often, employers designate their headquarter state as the place to bring such a lawsuit. But New York law doesn’t have the same broad rights for employee speech that California does. So in terms of legal gambits, it’s unlikely that taking them to court in New York state would produce a different outcome than California.
In these two scenarios, are speech rights addressed in employee contracts?
Barr likely had a contract with a morals clause. This is very common in entertainer contracts.
If Barr’s contract had a simple clause that allows her to be terminated for a criminal offense or arrest, it’s possible that she has a valid contract claim. Her tweet was reprehensible, but it broke no law. So if her contract had this language, she could have something against ABC.
But the more likely scenario is that she had a longer clause that defines morals to include conduct or speech that “will tend to shock, insult or offend the community or public morals or decency or prejudice the Producer in general.” That’s a quote from a standard morals clause. If Barr has such a clause in her contract, then she likely has no claim against ABC.
If NFL players filed a lawsuit, it would likely be referred to arbitration, where the arbitrator would be the same person who implemented the anthem rule: Roger Goodell, the commissioner of the NFL.
What can the average worker take away from this situation?
It offers a lesson in speech rights at work: You’re free to tweet and kneel as you see fit, but when your employer credibly cites harm to its business interests or its reputation because of it, they can terminate you. And if you file suit to get your job back, the employer usually wins.