ALAA Roots — An Unofficial Site

March 9, 2010

2010.03.09: RE: The realities of the First Amendment and free speech in the workplace

From:  Letwin, Michael
Sent: Tuesday, March 09, 2010 2:19 PM
To: ALAA MEMBERS; 1199 Members
Subject: RE: The realities of the First Amendment and free speech in the workplace

Your argument is misplaced. We rely not on the First Amendment, but on ALAA’s past practice and Collective Bargaining Agreement:

§ 3.5 “The expression of personal religious, political, social or economic beliefs of each and every attorney is fully guaranteed and will never constitute grounds for discharge or relief from an individual assignment unless, in either instance, it can be demonstrated that such expression has, or will, directly interfere(d) with, and detract from, representation of a Society client so as to render said representation less than at the highest level of competence and effectiveness.”

§1.5 “The Union will have reasonable use of the Society’s internal communication mechanisms.”

Moreover, it does constitute a genuine hostile work environment under Title VII to selectively suppress speech in defense of Palestinian rights.

_____________________________________________

From:  G.

Sent: Tuesday, March 09, 2010 2:08 PM

To: ALAA MEMBERS; 1199 Members

Subject: The realities of the First Amendment and free speech in the workplace

This is a slightly revised re-posting of an e-mail I sent earlier when Debbie and George presented the e-mail agreement to the membership.  I am re-sending it as the topic of “free speech” keeps coming up in a way that does not seem to take into account the realities of the First Amendment and its jurisprudence with regard to free speech in the workplace.  I am concerned that in the name of “free speech” rights which are not protected under law, we will forgo the wider latitude we currently possess that allows us to use the management e-mail system for union purposes.  That being said, as I have said  in the past, I believe a separate union e-mail listserv that is completely independent of the management listserv should be created.

What we risk by forgoing the opportunity of following the ALAA/Management e-mail agreements is a far greater loss at arbitration.  I will also point out that this agreement is, as I understand it, a temporary one and one that allows us a chance, as a union, to try to work together to formulate the details of a policy that meets the goals of all involved, both union members and management.  If you are uncertain about the risks of arbitration to our e-mail rights, I hope you have a chance to speak to your union delegate or to Debbie or George.  It seems like our best opportunity for maintaining as much control over e-mail speech as possible is to comply with this Agreement.

I want to briefly address arguments about the First Amendment and our “constitutional rights.”  The First Amendment does not apply to private employers and employees in the ways some have suggested during the course of this discussion.  We as private employees do not have a “constitutional right” to free speech on our e-mails.  The First Amendment applies to the government and to public employees.  Here is the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— The First Amendment to the U.S. Constitution

http://www.firstamendmentcenter.org/about.aspx?item=about_firstamd

In addition to the plain reading of the Amendment, my understanding of case law (having worked as a Constitutional Law Teaching Fellow and an ACLU First Amendment fellow/litigator prior to coming to Legal Aid–although these things were some years ago and I do not remember all the specifics I once knew) is that the First Amendment has not been interpreted to mean that private employers cannot limit the speech of their employees.  Quite the opposite is true.  The First Amendment has consistently been found to apply to the government and to public employees.  That being said, my understanding is that even public employees do not necessarily retain full First Amendment protection in the workplace.

The First Amendment Coalition has the following on their website:

Political speech in the workplace

Although the First Amendment limits the restrictions that government employers can place on employee speech, private employers have much greater latitude to restrict employee speech. Both the First Amendment and the free speech right of the California constitution protect against state — and not private — action. See Golden Gateway Center v. Golden Gateway Tenants Ass’n, 26 Cal. 4th 1013, 1031 (2001)…In 2004, a California court rejected the claim of an employee that her termination by her private employer was a violation of “fundamental principles of public policy” such that she could recover damages from her employer in a lawsuit. Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 79 (2004). The court said that “the First Amendment free speech provision fails to establish public policy against terminations by private employers for speech-related activities because this provision applies only to government actions and expresses no public policy regarding terminations by private employers.” Id. at 77.

Here are some additional resources:

Please note that the following sites are the result of a very quick Google search.  I do not have the time or desire at this moment to engage in substantive legal research on this topic.  Obviously, anyone who is interested in learning more about the First Amendment in the workplace, can do so using Westlaw, etc.:

http://www.firstamendmentcoalition.org/2009/06/political-speech-in-the-workplace/

http://www.firstamendmentcenter.org/rel_liberty/free_exercise/topic.aspx?topic=workplace_religious_liberty

http://library.findlaw.com/2003/Sep/30/133065.html

Thanks for taking the time to read this,

G.

_____________________________________________

From:  Torres, Azalia

Sent: Tuesday, March 09, 2010 1:58 PM

To:   ALAA MEMBERS; 1199 Members

Subject: RE: Pop-Quiz on Free Speech at LAS 101

I really don’t care what “drives” management “nuts”.  I do care about my right as well as any one else’s in my union to express their opinions on a variety of issues that very much affects our daily lives and influence our perspective on what our government is doing.  I don’t like a lot of what some have to say but I do and will defend their right to say it no matter how stupid, ignorant, arrogant, etc., I might think they are.

Scott, read through the whole “Pop Quiz on Free Speech”.   Today it’s folks objecting to anything that criticizes Israel. Tomorrow it could possibly be something dear and close to you. That’s why it’s important to defend rights from the onset of attacks not just when it’s convenient.

Antonia, thanks for adding to the process of enlightenment of our membership with regards to issues that should concern our collective union.

_____________________________________________

From:  S.

Sent: Tuesday, March 09, 2010 12:57 PM

To: ALAA MEMBERS; 1199 Members

Subject: RE: Pop-Quiz on Free Speech at LAS 101

Again:

When are people going to realize that this is a LAS email system (despite what the contract says).  When are people going to realize that they are offending their colleagues by continuing to post to all what some view as incendiary email?

It’s exactly the same thing as if I constantly proselytized for my religion through mass email.  Completely inappropriate.

I take no email position on Israel, Hamas, or the new government in Thailand.  I do take a position on the arrogance of my colleagues who continue to post despite years of being asked not to.  Those who continue to post have little respect for the wishes of others.

Also, it’s not the “apartment available” and “adopt a cat” emails that are driving LAS nuts, its the ones I’m addressing.  And when LAS really cracks down on the email policy, whether they contractually can or not, I’ll know who to blame.

Aside from the Union endorsing a candidate, which is part of their job, please keep your politics to yourself.

_____________________________________________

From:  Letwin, Michael

Sent: Tuesday, March 09, 2010 12:55 PM

To: ALAA MEMBERS; 1199 Members

Subject: Pop-Quiz on Free Speech at LAS 101

(Don’t cheat — you probably know the right answers* anyway).

1. Free speech exists precisely to protect the expression of opinions that other people may find:

A. Untrue.

B. Inflammatory.

C. Offensive.

D. Boring.

E. Annoying.

F. Upsetting.

G. Provocative.

H. Too controversial.

I. They really don’t like to hear.

J. All of the Above.

2. “Hostile work environment” means:

A. You really don’t like what someone else says or does at work.

B. “[D]iscriminatory workplace harassment based on race, color, religion, national origin, disability, age or sex. Additionally, the harassment typically must be severe, recurring and pervasive.”

http://employeeissues.com/hostile_work_environment.htm

3. Under ALAA’s Collective Bargaining Agreement, a message entitled “Stand with the People of Gaza & Palestine – protest tomorrow 3/9/2010” is just as protected as a “non-work” message about:

A. Tillikim and the other Whales at SeaWorld (e.g., Edda Ness, 3/3/10).
B. Public Petition to Support Qing Wu (Christine Bella, 3/1/10).
C. Contacting Your Representatives on Health Care Reform (Debbora Gerressu, 2/22/10).

D. Food for thought, the next time you think of spending any of your money at Whole Foods (David Affler, 2/6/10).

E. Cocktail Reception to Raise Funds for the Victims of the Haitian Earthquake – 2/4/10 (Allen Popper, 2/2/10).

F. A bit of wisdom from Sarah Palin (Jeffrey Bloom, 11/19/09).

G. RE: Ted Kennedy has Come and Gone (Sam Roberts, 8/26/09).

H. Queens Charter Event 5-13-09 (Mary Anderson, 5/8/09).

I. All of the above.

4. When someone writes a message you don’t like, union and free speech principles entitle you to:

A. Ignore it.

B. Selectively block messages from the sender and/or about that topic.

C. Express your own opinion.

D. Whine loudly until management agrees to selectively censor the union e-list.

E. A, B and/or C.

5. Since “New ALAA Email Policy” went into effect on October 7, 2009, there have been at least 555 “non-work” messages — not one of them sent to a specially created group.

A. True.

B. False.

6. Since the “New ALAA Email Policy” went into effect on October 7, 2009, management has issued a public warning only against the one entitled “Stand with the People of Gaza & Palestine – protest tomorrow 3/9/2010.”

A. True.

B. False.

7. Since everyone has the option to selectively ignore and/or block unwanted messages, we can reasonably infer that the real purpose of selective censorship is to inhibit criticism of Israel’s treatment of the Palestinians.

A. True.

B. False.

8. People try to censor opinions they disagree with because they:

A. Have confidence in their own position.

B. Lack confidence in their own position.

9. I believe that Palestinian lives are just as precious as anyone else’s. (Be honest.)

A. True.

B. False.

10. In the last Sunday sermon before his assassination, Dr. Martin Luther King Jr. defended his opposition to the Vietnam War, explaining, “there comes a time when one must take a position that is neither safe, nor politic, nor popular, but one must take it because one’s conscience tells one that it is right.”

A. Yes, I agree with Dr. King’s philosophy.

B. No, this doesn’t apply to positions that I deem “too controversial.”

—————–

*Answers

1:J

2:B

3:I

4:E

5:True

6:True

7:True

8:B

9:A.

10:It’s not about Dr. King, it’s about us.

 

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