Connecticut Legislation Seeks to Unconstitutionally Restrict Political Speech by Employers
A Connecticut legislator is seeking to restrict the speech of employers on “religious or political” topics in pending legislation (House Bill 5460). The bill reads, “No employer, and no . . . representative . . . of such employer, shall require its employees to attend an employer-sponsored meeting with the employer or its agent, representative or designee, the primary purpose of which is to communicate the employer’s opinion concerning religious or political matters.” This content-based regulation of speech violates the First Amendment by singling out political and religious speech for special restrictions.
Employers have free speech rights even in the labor-union context, where free speech protections are at their weakest for employers under the Gissel line of cases. For example, the federal appeals courts have ruled that the First Amendment protected a manager telling his subordinates that they lost benefits by voting for a union (Roper Corp. v. NLRB (1983)), and an employer’s assertion that unionization, by increasing costs, might lead to a plant’s closing in the future (NLRB v. Douglas Division (1978)), even though these statements were very offensive to pro-union employees. These rulings apply with added force to core political and religious speech.
Employers can’t be prevented from expressing their religious and political views even in the harassment context (where free speech is restricted to advance the government’s interest in eradicating discrimination). Thus, the Ninth Circuit held that the First Amendment barred Hispanic employees’ class-action racial-harassment lawsuit against a white professor for e-mails against immigration they perceived as biased (Rodriguez v. Maricopa Community College District (2010)). Similarly, the Oregon Supreme Court struck down an agency’s religious harassment fine because it penalized unintentionally offensive religious speech. The majority of the Justices ruled that it was a violation of free-exercise of religion guarantees. A concurring judge concluded that the agency’s harassment rule also violated state free-speech guarantees, because it prohibited speech that, while offensive, did not rise to the level of creating a subjectively hostile and abusive work environment. (Meltebeke v. Bureau of Labor and Industries (1995).) And the California Supreme Court narrowly construed the state’s sexual harassment law in the face of a First Amendment defense raised by Warner Brothers TV Productions, which argued that holding it liable for sexual jokes told by sitcom writers during the creative process would violate the First Amendment. In his concurrence, Justice Ming Chin noted that holding that company liable would violate freedom of speech. (Lyle v. Warner Brothers Television Productions (2006).)
The bill is entitled “An Act Concerning Captive Audience Meetings,” and its stated purpose is “To prohibit an employer from coercing employees into attending or participating in meetings sponsored by the employer concerning the employer’s views on religious or political matters.”
But this is based on a misunderstanding of the First Amendment. Even the existence of a captive audience can only justify content-neutral restrictions on speech — not content-based bans, like bans on “political or religious speech.” Thus, while residential picketing can be restricted to protect captive homeowners (Frisby v. Schultz (1988), it can’t be restricted based on the content or subject matter of the picketing; such restrictions violate the First Amendment. (Carey v. Brown (1980).) As the Supreme Court emphasized in 1972, “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
Moreover, as leading First Amendment scholars like UCLA law professor Eugene Volokh have noted, the case most often cited for the proposition that captive audiences can be protected through content-based restrictions, Lehman v. City of Shaker Heights, actually held no such thing, since five justices actually rejected content-discrimination in that case, and it involved public, not private, property. (I discuss that case in more depth here). As the Supreme Court has noted, a government “attempt to restrict the free expression of a private party cannot be upheld by reliance upon precedent that rests on the special interests of a government in overseeing the use of its property.” (Consolidated Edison Co. v. Public Serv. Commission (1980).)
Moreover, the First Amendment is supposed to provide more protection for political and religious speech, not less — the way this Connecticut bill does. The greater protection afforded political and religious speech is the reason why the Supreme Court gives local governments added leeway to bar X-rated movie theaters and bookstores from certain parts of town, but not regular bookstores with books on political or religious themes.
It’s also doubtful that mere presence in a mandatory meeting always turns employees into a captive audience for First Amendment purposes, since employers have won cases over speech to employees at mandatory meetings.
It’s also not a valid time-place-manner restriction on speech, since such restrictions must be content-neutral, and the Connecticut bill seeks to restrict specific categories of speech — “religious or political matters” — based on their content. As the Supreme Court has stated, “for a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech” (Pacific Gas & Elec. Co. v. Public Utilities Commission (1986)), and it “may not be based upon either the content or subject matter of speech” (Consolidated Edison Co. v. Public Serv. Comm’n (1980)).
The restriction on religious speech is also not valid because of the Establishment Clause, because the Establishment Clause keeps only the government — not private employers — from having a religion. As the Supreme Court has emphasized, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” (Board of Education of Westside Community Schools v. Mergens (1990)).