Freedom of Expression in the Workplace

Abstract

This chapter addresses the implications for democratic government of employment-based limitations on freedom of speech. The workplace is a distinctive expressive domain because the ‘censor’ and the speaker are typically bound together by an employment contract that affords the former a large measure of hierarchical control over the latter. The employer, having hired the employee to do a job, has legitimate interests in regulating some employee speech. The employee, for their part, is typically dependent on the employer for their livelihood, and vulnerable to the employer’s overreaching beyond those legitimate interests. Those features of the employment relationship give rise to a distinct set of questions about the value and limits of free speech in the workplace setting, public or private. The chapter then focuses on how US law, primarily constitutional law but also non-constitutional law, has dealt with those questions. While the US law governing freedom of expression in the workplace is unique in some ways, the problems it deals with will arise in any society that both recognizes the value of freedom of expression and channels labour into the production of goods and services largely through the institution of employment.