The NBA has been rocked by a simple, short tweet by Houston Rockets’ GM Daryl Morey: “Fight for freedom; stand with Hong Kong.” Americans place the highest value on freedom of expression and speech, and the recent reaction to the tweet has been entwined with discussion of the First Amendment. The natural, but too often unasked question is, “How does the First Amendment apply in the employment world?”
The First Amendment mandates that, “Congress shall make no law … abridging the freedom of speech.” This ground-breaking language was ratified to prohibit the federal government from infringing on the right of free speech. The starting point of discussion must be the first word: “Congress.” The amendment does not prohibit any person, entity or municipality from silencing speech—except Congress. The drafters and ratifiers of the Constitution and Bill of Rights were limiting the power of the federal government. States could do what they wanted—unless the states themselves prohibited such limitations (as many of them did).
Prior to the Civil War, it was universally understood that the Bill of Rights did NOT apply to the states. A state could ban a religion, outlaw the press, or take a thousand other untoward actions. Just after the Civil War, the Fourteenth Amendment, which outlawed state-sponsored discrimination, was passed, beginning the process of extending these prohibitions to states and local governments (towns, cities, etc.). Incrementally, the United States Supreme Court began issuing decisions holding that some of the rights set forth in the Bill of Rights were fully incorporated, and thus applicable to states and governments.
Many would be shocked to learn that freedom of speech was not incorporated until 1925, when the Supreme Court decided Gitlow v. New York. In that case, Benjamin Gitlow was convicted of the crime of criminal anarchy—advocating for the overthrow of the government. The charges were based on his involvement with the publication of two works: (1) The Left Wing Manifesto; and, (2) The Revolutionary Age. The Supreme Court held that the First Amendment applied to the states, but upheld his conviction because the state had a right to criminalize the underlying conduct.
Since Gitlow, the First Amendment has applied to states and local governments. But how does it apply to employees of private employers, leagues and other non-governmental entities? Generally, it does not. Free speech rights against those entities may derive from union contracts, federal law, state law, employer policies, or a myriad of other sources. But they typically do not derive from the First Amendment.
Of course, governments often employ people—do those employees have First Amendment rights against the public employer? Perhaps, but it’s complicated. Almost from the time that governments started employing people, there has been a tension between an employee’s rights as an individual, and the government’s rights as an employer.
Balancing tests were created and modified, ultimately trying to decipher whether, at the time of the public speech, the person was speaking as an “individual” or as an “employee.” In 2006, the United States Supreme Court addressed the question in the ground-breaking Garcetti case.
Gil Garcetti was the district attorney for the City of Los Angeles (if the name sounds familiar, it is because he held that title during the O.J. Simpson trial and his son is the current mayor of Los Angeles). Richard Ceballos was a supervising assistant district attorney in Garcetti’s office. During the course of Ceballos’ work, he became suspicious that law enforcement officers had made false representations on an application for a search warrant against a defendant. He investigated those suspicions, and reported them to his supervisor via memorandum, recommending that the office drop the charges. He ultimately was called as a witness by the defendant, and testified accordingly. The supervisor allowed the criminal case to proceed and the defendant was convicted.
Ceballos claimed that he suffered retaliation as a result of relaying those concerns to his supervisors. He sued, and the Supreme Court ruled against him, deciding that because his speech related to his employment – i.e. because he was acting as a public employee rather than a private citizen when he made his “speech” – he did not have First Amendment rights. Over a decade of court decisions since Garcetti have examined this same issue, and invariably the courts’ decisions are highly fact-specific.
Consequently, employees of a public employer do not have First Amendment protections if they are speaking as employees. If the speech arises because of the nature of their employment, or because of their access to information because of their employment, the employee is not protected by the First Amendment.
The First Amendment does not protect Daryl Morey’s right to publish that tweet. Our societal values do, but only if we demand that protection.