Recently, I was listening to some liberty-minded conservatives discuss the question of whether it should be legal for an employer to discipline or fire an employee for what that employee says on his own time, away from the workplace. They agreed that this would violate the employee’s ‘First Amendment right to free speech’. Say what?
I was somewhat amazed at this lack of recognition that the First Amendment, along with the rest of the Bill of Rights, protects people from the actions of government.
So government can’t tell you not to say something, but your neighbor can set whatever limits he wants on what can be discussed in his house. (And if you don’t like it, you can leave.)
Government can’t disarm you, but your neighbor can require you to disarm yourself as a condition of entering his property. (And if you don’t like it, you can refuse to enter.)
Government can’t tell you what religion to belong to, but your neighbor can refuse to deal with you if you belong to a religion that he doesn’t like. (And if you don’t like it, you can find other people to associate with.)
And so on.
So what does a private employer, disciplining or firing a private employee, have to do with the First Amendment?
Let’s consider this question: Should your employer¹ be able to fire you simply because he thinks you’re a jerk?
If the answer is yes, then his assessment of your jerkitude would reasonably take into account what he knows about what you do away from the job, whether that’s beating your wife and kids, donating to causes that he finds abhorrent, engaging in recreational activities (e.g., involving gambling, drugs, or sex) of which he disapproves… or saying things that he strongly disagrees with, including things that, in his opinion, indicate that maybe you’re just not bright enough to continue working for him.
So I have to conclude that these liberty-minded conservatives think that the answer is no. My question is: Why?
One possible answer — which is consistent with some of the comments I heard — is that the only reason for employing someone is to exchange money for specific services, and nothing else should influence that transaction.
But I think we can rule out that answer, because all the people in that conversation have, at one time or another, participated in boycotts. That is, they have decided to stop doing business with a company because of the views expressed by that company. And they have done this because the exchange of money for specific goods and services is not the only consideration that people take into account when deciding who they’re going to deal with. What any boycott demonstrates is that this isn’t even the most important consideration.
It’s inconsistent to say that you’re for boycotting companies for reasons that have nothing to do with the actual goods or services that they provide, but against boycotting employees for reasons that have nothing do with the services that they provide. They rely on exactly the same reasoning.
A second possible answer might be that once someone enters your employ, he has some kind of ownership interest in the job that you’re paying him to do. But this strikes me as an example of how using the wrong words can lead to drawing the wrong conclusions.
That is, consider the difference between (1) an employer ‘giving a job’ to an employee, and (2) an employer ’employing someone’ to do something.
In the first case, the very act of referring to ‘a job’ gives it a kind of independent existence. It’s a thing someone can have. And firing someone becomes taking something away from him. Something he was given. Something that was his. Something that is being stolen from him. Something that he needs, and is therefore entitled to. Note that everything becomes, not about the work, but about the worker.
In the second case, when the thing is done — my house is painted, my will is drafted, my store is closed for the day — there’s no residual entanglement.
Of course, we may both want some kind of entanglement! Maybe I like the quality of his work, and want to make sure he’s available to me instead of working for someone else. Maybe he likes the security of steady payment, even if it means lowering his prices, or having fewer choices about what to work on. Maybe we appreciate other things about each other, which make an ongoing arrangement attractive to us.
There’s a mechanism for specifying the terms of such an entanglement. It’s called a contract. And a contract is the place you specify things like the extent to which the continuation of your entanglement depends on what you do when you’re away from the workplace. (It was big news recently when Patrick Mahomes signed a contract with the Kansas City Chiefs — or whatever they’ll be called next year — which prohibited him from doing all kinds of things ‘on his own time’.)
But the people I was listening to weren’t talking about contractual arrangements. They were talking about ‘jobs’. And I just can’t believe that they believe that an employee has an ownership interest in a job. (Of course, much of current law treats this as if it’s the case. But this was a conversation about what should be, not what is.)
There must be some liberty-minded reason why they think that it’s not okay for an employer to fire someone he thinks is a jerk. But I haven’t yet been able to think of one.
So in the end, I remain baffled. The more I mull it over, the more it seems to be based on nothing more than the reasoning that what I like is constitutional, and what I don’t like isn’t.
Which is the same reasoning that progressives use, isn’t it?
¹For purposes of this discussion, I’m going to assume that employer doesn’t refer to any government entity, and that an employer is different from a boss or a supervisor or a manager. If you work for GE, then GE — and more specifically, the owners of GE — are your employers. The person who manages you is not your employer.)
