About Speechless

SPEECHLESS
The Erosion of Free Expression in the American Workplace

Bruce Barry

Berrett-Koehler (Current Affairs)
Publication date: June 2007
cloth, 287 pages, $27.95
ISBN: 978-1-57675-397-2

A factory worker is fired because her automobile in the company parking lot has a presidential campaign bumper sticker. An employee is canned after calling the CEO an “evil and satanic figure” on an anonymous message board. A stockbroker resigns after his firm pressures him to curtail his off-work political activities. A web developer is canned for mentioning her employer in her blog. An worker at a defense contractor gets the ax after refusing to participate in a Gulf War celebration.

Speechless is motivated by alarm that situations like these can occur without meaningful recourse for those whose speech is silenced, and without significant consequences for employers doing the silencing. A toxic combination of law, conventional economic wisdom, and accepted managerial practice has created an American workplace where freedom of speech—that most crucial of civil liberties in a healthy democracy—is something you do after work, on your own time, and even then only if your employer approves.

Bruce Barry’s goal in Speechless is to examine expressive activity in and around the workplace from legal, managerial, and ethical perspectives. This includes any and all speech that draws employer interest and disapproval, whether it occurs at work or away from work, happens during work hours or afterwards, and addresses audiences inside or outside the firm.

In the first part of the book Barry explores the crucial role of law. Constitutional law erects formidable potential barriers to free speech in workplaces, while employment law gives employers wide latitude to use those barriers to suppress expressive activity with impunity. Our legal system gives employers a great deal of discretion to manage the workplace, including employee speech, as they see fit, and imposes few limits on how that discretion is exercised.

But the law tells only part of the story. The repressive state of free expression in the American workplace also owes its existence to conventional wisdom and customary practice. Prevailing market-focused attitudes about our economy and our system of work leave employers free to make and enforce rules for workers as they see fit. This system gives employers a right of property ownership over not just what they manage, but how they manage. Employees have little choice but to accept conditions of work, or go elsewhere in the marketplace for their labor.

The end result is that employers not only have the legal ability to repress employee speech at, around, and after work, but also display all too frequently

a reflexive impulse to do so. Free speech that doesn’t in any serious way jeopardize the employer’s interests is viewed as a potential threat, and these views are given far more weight than workers’ First Amendment rights.

When employers overreact to essentially harmless employee speech on or off the job, it masks an effect on everyone else—the chill that it puts on other forms of expression by employees. Speechless is peppered with numerous cases and examples where speech by employees at or outside of work has come under the scrutiny of their employers. The point is not to suggest a rampant movement in the American workplace to silence and punish every outbreak of non-work-
related speech. Barry does contend, however, that a generally inhospitable workplace climate for a lot of free expression by employees puts workers on notice and at risk of consequences for their speech.

Limits on free speech at work go hand in hand with an absence of due-process rights and just-cause protections in the American workplace. Unlike most advanced nations, the American system of work is unique in giving employers near-total discretion to fire employees for just about any reason, or for no reason. A person punished or fired for her speech enjoys no assurance of a fair process (or, for that matter, any process) for challenging that outcome. Yes, many employers elect to tolerate plenty of expression by their workers, but there is no obligation to do so, and the lack of a basic right to due process on the job inevitably chills employee free speech.

Bruce Barry argues in Speechless that this chill diminishes not just our rights as employees, but our effectiveness as citizens—as participants in the civic conversations that make democracy work. Work is where adults spend much of their waking lives, and where many forge the personal ties with other adults through which they construct their civic selves. Opportunities to speak freely without employer interference are more than just managerial niceties that make the experience of work feel a little less tyrannical. Workplaces are key venues for shared experience and public discourse, so workplace speech rights matter for advancing citizenship, community, and democracy in a free society.

Why do we grant so much control over the raw materials of democracy to employers? And why are employers eager to exercise that control? The answers to the first question are found in the American legal system—the system of constitutional law that governs free speech and the system of employment law that defines the American workplace. Speechless explores in depth how these strands of law give employers the power to silence employee speech. In the book’s final chapters, he takes on the second question: how and why employers make repressive choices about employee speech and what can be done about it.

Book cover of Speechless - The Erosion of Free Expression in the American Workplace
SPEECHLESS
The Erosion of Free Expression in the American Workplace
Berrett–Koehler, 2007
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Contents
Introduction: Speechless at Work in America
Chapter 1: When Work and Speech Collide
Chapter 2: Constitutional Rights in Public and Private
Chapter 3: Unemployment-
at-Will
Chapter 4: Public Employee Speech
Chapter 5: A Chill in the Private Sector
Chapter 6: Why Free Speech Works
Chapter 7: Civil Rights and Wrongs
Chapter 8: Speech in the Digital Age
Chapter 9: Managing Expression inside the Workplace
Conclusion: The Case for Freer Expression
Acknowledgments
Notes
Index
Copyright © 2007 Bruce Barry
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