You Have the Right (Not) to Remain Silent!

802 Legal Corner: The First Amendment in the Workplace

Volume CVI, No. 2February, 2006

Harvey Mars

Perhaps the most cherished of all our civil liberties is freedom of speech and association established by the First Amendment.

Thomas Jefferson once wrote: “A right to take the side which every man’s conscience approves in a civil contest is too precious a right, and too favorable to the preservation of liberty, not to be protected by all its well-informed friends.”

Hence, the Supreme Court has accorded political speech the highest level of constitutional protection.

However, this cherished right is not an unconditional one.

You can’t shout “fire” in a crowded room, when a fire does not actually exist.

You cannot disclose the location of ships at sea.

Nor can you call your boss “Her Wretchedness” and “the most insane person you have ever witnessed outside of Dateline NBC” on a blog.

In the workplace setting, an employee’s right to free speech is constrained, and an employer generally has the right to discipline or terminate an employee for comments they may make about them or the place in which they work. (This is less so with a public employer.)

In fact, with the advent of the blog, a new term has been coined for an employee who has been sanctioned for publishing demeaning comments on the Internet about their employer: “dooce,” which means to lose one’s job because of one’s Web site. For this reason many employers are establishing work rules for employee use of the Internet.

Nonetheless, under the prior restraint doctrine, the First Amendment prohibits an employer from enjoining an ex-employee from making derogatory blog comments about them, even if those comments may be considered libelous. Bynog v. St. Green Realty Corp., 2005 WL 3497821 (S.D.N.Y. 2005).

This is even true if the ex-employee is covered by a confidentiality agreement. Soumayah v. Minnelli, 19 A.D. 3d 337 (1st Dept. 2005), a case litigated by yours truly.

This, of course, does not mean that the employer cannot obtain damages from the ex-employee if the statements made on the Internet are in fact defamatory.

However, since the National Labor Relations Act protects concerted activity with regard to wages, benefits and other terms and conditions of employment, to the extent that Internet usage concerns these particular issues, it is protected and cannot be the basis for an employee’s discipline or discharge.

For instance, the National Labor Relations Board has held that an employee could not be terminated for surfing the Internet to locate financial information regarding his employer to assist in a union organizational campaign. Amcast Automotive of Indiana, Inc. and John Rowe, Case 35 CA 29199 (June 2005).

So long as an employee can demonstrate that their Internet usage was connected to protected activity, then an employer would be barred from disciplining that employee, even if he or she were not protected by a collective bargaining agreement’s just cause provision.

Harvey Mars is counsel for Local 802. Legal questions are welcome from 802 members. E-mail them to Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.