Still No Free Speech At Work: Response To Your Comments on Phil Robertson and Duck Dynasty

Despite reader skepticism, First Amendment does not protect employees

Duck Dynasty-Hometown
AP
Wow! I had no idea so many of my readers loved Duck Dynasty. With almost 2000 comments, I can't possibly respond to them all. When I wrote last week that A&E was probably within its rights to suspend Phil Robertson for making racist (yes, it's racist to say blacks were better off under Jim Crow) and homophobic comments (and I didn't even know then about the sexist and disturbing comments he made about marrying 15-year-old girls), you had lots to say. Some of you talked about religious discrimination. Some wanted to know more about his contract with A&E. I'll talk about those issues in another article.

First I wanted to respond to the fact that even more of you still don't believe that the 1st Amendment doesn't protect you at work.

No First Amendment Protection For Employees? What A Dingbat!

Many of you chastised me for even suggesting such a thing:
  • ihave1465fans The dingbat writer of this article diesn't seem to know that Rights in America belong to individuals, not to selected collectives. She is part of a major problem in the country where people seem all too eager to throw their rights away !

An All in the Family reference. A blast from the past. Thanks Archie! I always loved Edith.
  • Joanne i'm sick of these people (Donna Ballman) who can WRITE anything they please, but we can't Say anything? Screw her and the media. Phil Robertson was correct to say anything he pleases. FIRST AMENDMENT, PEOPLE. Go read your contstitution again and take it for what it's worth. Not pick it apart to think what YOU believe is correct.
  • GANNSKNIVES Go validate yourself. if we believe this to bit writer, attorney only special class people have right's. HEY Stupid person ALL Americans Have rights even you. Stand against one persons rights you stand against all.
  • bestgtrplayer "The First Amendment right to free speech does not apply to non-government employers." "I've said it before and I'll say it again: there is no free speech in corporate America." - Donna Ballman - I'd like to know where your laws come from and how the constitution only applies to "some" people?

Great Balls of Fire!

Some of you even made fun of my name, which I haven't experienced since elementary school, so thanks for another blast from the past.
  • jon.denton Ball(woman) is completely out of touch. Just more proof for media bias---Sad
  • gledda Donna Ballman she's not a man & got no balls....everything she said is a crock of **** as i said b4
  • EXZUR12 "... it's best to keep your comments on race, sex, sexual orientation and religion to your close friends, family and yourself if you don't want to risk losing your job. .."...while the gays, lesbians, transexuals, bisexuals can express all about their orientation at work and still their employer wouold be scared to fire them...now, how about that for double standard, Ms, Mansball!

I understand your anger. I do. After representing employees for over 27 years, I get frustrated over how few rights employees have. I get even more frustrated that employees get fired when they try to invoke workplace rights they think they have but don't.

Put The Blame On . . .

Some of you blamed President Obama:
  • talari That flake Anderson Cooper gets to say what's on his mind but Alec Baldwin gets fired for saying the opposite. Welcome to Obama's America.
  • One bad concop If Phil were President we wouldn't have any of the problems we do today. Impeach Obama

But let's place blame where blame is due: the Founding Fathers. I didn't write the Bill of Rights. If I did, employees would have lots more rights. Here's what our forefathers wrote about free speech in the 1st Amendment:
Amendment I
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.
That's right. Congress can't make a law restricting free speech. I challenge my readers to find anywhere in the Constitution that protects employee free speech from employer wrath.

Stupid Liberals
  • mpfluty Donna Ballman, are u head of the Gay Pride, Rainbow, or part of the Hillary Election Campain. Maybe you work on the inside for Obama. Do you understand what freedom of speach is ? Are you that uneducated ? Its uneducated articles like this that really shows you are in desparate need of training, or maybe a mile of Common Sense. Go to Walmart and buy you some.
  • cahokian Donna it is obvious to me that you views are that of a liberal . God bless you. Its nice to have an opinion and a free right to voice that opinion isn't it ? Freedom of speech, is exactly that, FREEDOM OF SPEECH !!! I believe that The Bill Of Rights is something to be cherished and not to be slowly discarded. The liberal mentality is to discard or change something if it doesn't correspond with their views or beliefs .

Yep. You called it. I'm a liberal gay-rights supporting Hillary fan. I'm not a journalist. I'm a practicing lawyer who happens to also write for AOL Jobs. I write about my opinions based on employment laws.

That doesn't mean I got the law wrong. To be clear, I'm not telling anyone that they can't say whatever they want to their bosses, co-workers or customers. What I'm saying is that you can be fired unless you're careful what you say. That's right. I don't care what you believe. I still don't want you to be fired. I represent employees, not their corporate masters.

We Still Don't Believe You
  • Doris Mixon What a STUPID article. So your telling me that you must always be on your guard because you "might" hurt some ones feeling. Give me a break and get a back bone. BOO HOO!! Only liberals would start whining about someone not playing nice....You have a constitutional right to say what you want but if liberals have their way you'll only be able to say what they want to hear.
  • wolfewispr the writer of this article "in my opinion" is an idiot.. he's full of what if's and speculation.....And yes the constitution applies to every citizen in america. the only ones excluded are convicted prisoners who give up their constitutional rights while incarcerated...not only that, the only goal for this writer is to keep things stirred up.
  • bellzonna Donna..........You couldn't find your hiney with both hands!

Okay, so you still don't believe me. Let's see what happens to people who don't bring in $400 million in licensing fees to their employer. Here are a couple of recent examples of employees who were fired for making less-than-appropriate comments at work:
  1. A CBS blogger, Anna-Megan Raley, was fired for asking if a (quite beautiful) cheerleader was "too chunky" to cheer and pointing out her "pudginess."
  2. A Home Depot employee, tweeting on behalf of Home Depot, was fired after he sent out a picture of three drummers, two African-Americans flanking a guy in a monkey suit, "Which drummer is not like the others?"
There Ought To Be A Law

I'd like to say these employees sued and won their jobs back along with millions of dollars, but I can't. There's no law protecting this type of speech at work. That doesn't mean there couldn't be.
  • MIKE In your article you stated that First Amendment right to free speech does not apply to non-government employers. You then said Mr. Robertson does indeed have First Amendment rights. So what you are saying is that anyone that works in a non-government capacity can be fired even if they are expressing their First Amendments rights? Doesn't seem right.

You're right Mike. It isn't right. But that's the law. And you know what? You can change it. Write to your members of Congress and tell them to pass a law that employees can't be fired for stating their political or moral beliefs. Better yet, ask them to pass a law like Montana's, that employees can't be fired without just cause. I'd love to see some pro-employee laws put in place.
  • SQUEELAWHEELA Okay I am in agreement with not airing all your beliefs at the work place .But challenge my beliefs at work place in a car on a plane or a train or any place in the U.S.A. and I am gonna hit you so hard with my beliefs and with my freedom of speech, I dare you to try to shut me up or drown me out. Oh and if you don't like it there are plenty other countries you might wanna try living in. In Phil We Trust

Okay Squeela. You have the right to say whatever you want. Just don't complain or try to sue when you get fired for speaking out about your beliefs.

Free Speech Outside of Work

Some of you made a good point, namely, that Mr. Robertson's comments weren't made at work:
  • Daniel Donna sounds like she knows what she is talking about, except that these comments were not made in his workplace. They were made in a magazine interview where his first amendment rights are fully protected.

Thanks, Daniel, for not calling me a dingbat.
  • eaglerockeagle What a stupid article. Phil wasn't at work when he did the interview.
  • countbackwardskq Ok. It seems that Phil wasn't AT WORK when he made these comments. He was being interviewed by GQ and THEY CAME TO HIM to ask him his opinion. So now in Obama's America we cannot even HAVE an opinionjQuery19109365841088605287_1396556235466?
  • BROKEN6STRING Headline states he said his business at work. It was said on his own time I'd say as I never heard those statements on Duck Dynasty.
  • monahdav Wasn't Mr. Robertson on some kind of talk show, Be it radio or TV He wasn't really at work So wouldn't he have freedom of speach if ask a question? .
  • JGambleOHIO Fact is... He wasn't at work when he said what he said. I stand by Phil's right to speak his mind. He is allowed to have an opinion just like the next person.
  • advancedbuilddes title of article says cant say anything you want at work but PHIL WASNT AT WORK he was doing a GQ interview
  • geez2463 He was not at work,it was his on time and he did a personal opinion (puffery) to a third party. It had nothing to do with corporate America or infringe on A&E in any manner.

I'd argue that Mr. Robertson was probably sent to the Esquire interview by A&E to promote Duck Dynasty, so he was at work. But what if he wasn't? Does that make a difference? It might. Can you say what you want outside of work? It depends on the state. Some states, like California, Colorado, New York and North Dakota have laws prohibiting termination or discrimination based upon an employee's lawful activities off-duty. If his contract says New York law applies to his employment, since that's where A&E is based, then he might have had an argument that his speech was protected. (I'll write more about his contract next week).

However, the show is filmed in Louisiana, so he's probably employed there. Louisiana, like most states, has no law protecting employees from being fired for off-duty comments. It's really common to be fired for posting inappropriate comments in social media. Some people who were recently fired or disciplined for offensive tweets, posts and comments outside of work include:
  1. Justine Sacco, PR executive for Daily Beast owner IAC, fired for posting, on a flight to South Africa, "Going to Africa. Hope I don't get AIDS. Just kidding. I'm white!" The company was embarrassed when the tweet went viral.
  2. University of Kansas Associate Professor David Guth put on indefinite leave after this anti-NRA tweet following the Navy Yard shootings: "The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you." Republican lawmakers (some of the same ones outraged by the Duck Dynasty suspension) demanded he be fired. He's now on a "planned sabbatical."
  3. Caitlin Cimeno, fired for posing with two guys dressed up like Trayvon Martin, in blackface and George Zimmerman, for Halloween and posting it on Facebook, then deleting it, but not before it went viral.
  4. Taylor Palmisano, a Scott Walker campaign aide, fired for posting racist tweets, including, "I will choke that illegal mex cleaning in the library. Stop banging (expletive) chairs around and turn off your Walkman."
  5. Business Insider forced their Chief Technology Officer Pax Dickinson to resign after he tweeted, "feminism in tech remains my champion topic for my block list. my finger is getting tired." Business Insider said this about the incident, "A Business Insider executive has made some comments on Twitter that do not reflect our values and have no place at our company. The executive has left the company, effective immediately. Business Insider's team is composed of more than 100 talented men and women of many backgrounds, and we highly value this diversity."
  6. Walmart assistant manager Terry Earsing fired for posting a picture of Muslim customers in robes with this: "Halloween came early this year ... do they really have to fu**in dress like that ... your in my country ... get that fu**in sh** off!!!!!"
  7. Miami Marlins manager Ozzie Guillen suspended for saying: "I love Fidel Castro," and "I respect Fidel Castro. You know why? A lot of people have wanted to kill Fidel Castro for the last 60 years, but that mother-f***er is still here."
I could go on. There are many others. My point is this. You have the absolute right to say whatever you want about your beliefs, whether or not your beliefs are offensive or insulting to others. You can say it at work, post it on Facebook or tweet about it at will. Your employer, however, has the right to fire or discipline you for saying it. I didn't write the laws, but I sure don't want you to get fired, whether or not I agree with you.

Next week I'll respond to reader comments about whether Mr. Robertson's speech might be protected by religious discrimination laws, and whether an employment contract can limit your free speech rights.

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15 Comments

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M. Miller

I give you two thumbs up for printing such negative comments that were made about you. Of course, they were just betraying their own stupidity in their attack on you. Freedom of speech is just that, you are free to say what you want. But, those that hear it are just as free to respond how they want and that includes firing. It may not be fair but that is the way it is. Doesn't anyone remember Dixie Chicks in 2003 and what happened when they made negative comments about President Bush? They were surprised at the backlash and kept saying they had freedom of speech. Yes, and their ex-fans had freedom of speech and freedom to boycott. No one promised that freedom of speech wouldn't have the potential for negative consequences. However, it does seem unfair to ask a person their opinion or stand on something and then fire them because you don't like the answer. Once again, "political correctness" running wild.

January 06 2014 at 10:30 PM Report abuse rate up rate down Reply
1 reply to M. Miller's comment
EmployeeAtty

So glad you enjoyed the article! It was Esquire that asked the question, not A&E. Obviously it didn't bother his fan base, so he's back.

January 06 2014 at 11:43 PM Report abuse rate up rate down Reply
Kaitlyn Brown

While this all may be true, I still don't understand How Miley Cyrus can display her body on television, basically advertising sex with crude and sexual dance moves, but thats just "Expressing her self" but when phill was Questioned (and note the word questioned; it had NOTHING to do with the show when they asked him) about his beliefs, he is crossing a line by giving his honest opinion?

To me though, maybe its a good thing Phill got fired, because frankly, more people are going to remember why he was fired then if he was still on the show.

January 06 2014 at 7:03 PM Report abuse rate up rate down Reply
Philip Miles

If Robertson were an employee actually covered by Title VII (and not an independent contractor), then I think the much stronger argument would be that he was discriminated against for his religious beliefs; and not that he was somehow creating a hostile work environment on the basis of sex (or sexual orientation under a state law). It's not like he was berating homosexuals at the workplace (or making any employment decisions on that basis), he was just expressing his religious views in response to a question by a magazine journalist outside of the workplace (even if he was sent there to promote).

That said, I think we probably agree that he's not a covered employee.

January 05 2014 at 5:36 PM Report abuse rate up rate down Reply
1 reply to Philip Miles's comment
EmployeeAtty

Yeah, he's probably not, although it would depend on his contract and how much control they have. I suspect he's not. I'll be writing about the religious discrimination aspects of it in a different article.

January 05 2014 at 6:33 PM Report abuse rate up rate down Reply
1 reply to EmployeeAtty's comment
Philip Miles

I look forward to reading it!

January 07 2014 at 8:31 AM Report abuse rate up rate down
jtomkiewicz

Just as in your last article make assumptive comments. Then you beat down people for making theirs. Here is your latest assumption:
I'd argue that Mr. Robertson was probably sent to the Esquire interview by A&E to promote Duck Dynasty, so he was at work. But what if he wasn't? Does that make a difference? It might.

So let's make a deal, you sick to touring FACTS and not make assumptions and we the readers will give you a bit more respect for your stand on this issue. Clearly you have a very liberal view point and are defending that more so. I say that because where were you tocomment On Joe Biden's comments last year when he made a speech where he stated "put ya'll back in chains" in a southern drawl. That was OK?

January 05 2014 at 1:02 PM Report abuse rate up rate down Reply
1 reply to jtomkiewicz's comment
Rick Alm

So sadly you took the author's statement "I'd argue that Mr. Robertson was probably sent to the Esquire interview by A&E to promote Duck Dynasty, so he was at work. But what if he wasn't? Does that make a difference? It might." as an assumption of fact and proceeded to rant on that very basis.

But the fact is you made an assumption about that statement whereas other people (myself included) simply would read the statement as a way to highlight an issue and initiate a discussion. In this case the position proposed was if he went to the interview on A&E's request then one position might exist under the law, yet if he did it for his own reasons it would be considered under a different light.

In any case, the statement to me clearly is a way to discuss the situation and address if it really matters why he did the interview.

I'd ask the question "why do people always assume the worst possible version of something they witness or read" but I already know the answer to that. We have been so overwhelmed by information and opinion that we don't try to discover the intent in the message, we love to find the words that disturb us then create our own rant on the topic.

My own post here being a classic example, it wasn't enough for me to simply read and chuckle but I felt compelled to write a comment here. Isn't peer-pressure a wonderful concept, I need to keep up with everyone else and grab my 15 seconds of fame.

January 16 2014 at 12:18 PM Report abuse rate up rate down Reply
The Kielich Law Firm

Those are some priceless comments. My favorite are the ones berating you for not spending enough time reading the Bill of Rights to understand that the First Amendment protects Robertson.

How dare you rely on the text of the amendment to stake out a position about how it relates to the situation. Lawyers, we just can't be trusted to do the right thing and take an ends-oriented approach to the law.

January 03 2014 at 2:34 PM Report abuse +1 rate up rate down Reply
1 reply to The Kielich Law Firm's comment
EmployeeAtty

You should read the others with the article! It was hard to pick which ones to use. I'll use some more next week when I write about the religious discrimination and contract issues.

January 03 2014 at 3:52 PM Report abuse rate up rate down Reply
Mystic

Well, speech is an inalienable right, a right that is endowed by our creator, not something that is granted by the bill of rights or the government. The bill of rights just jotted down what already exists.
Regardless, apart from a few lone voices that were largely ignored, there wasn't any real call to get the government involved to punish A&E for "violating" Phil Robertson's rights when they suspended him. The call was to let our outrage at A&E be known. Because even if they did have the right, they essentially suspended Phil Robertson for his religion, and not just that, but for answering direct questions he was asked about his religious beliefs. This was unjust. It wasn't like he was suspended for tormenting gay co-workers about being sinners, he was suspended for answering questions he was asked about his religious beliefs. And A&E did this because they thought no financial backlash would occur if they slapped more than half of this nation across the face. And they were wrong.

January 02 2014 at 1:16 PM Report abuse rate up rate down Reply
2 replies to Mystic's comment
EmployeeAtty

Yes, Mystic, that's exactly how free speech works. You can say what you want, but there could be consequences. Even though he wasn't protected by law, his viewers are free to either boycott or protest his suspension and demand his reinstatement. It was through the great public demand that he was reinstated. Unfortunately, for most employees in similar situations there will be no outcry, so they would be out of luck, legally speaking.

January 02 2014 at 1:26 PM Report abuse rate up rate down Reply
1 reply to EmployeeAtty's comment
Mystic

Yes, most employees who are victims of corporate censorship will have no recourse. They will have to find another employer who is a better ideological fit. In America we have the luxury to not get too worked up about this reality, for the time being, anyway.
But I don't think speech is the whole picture of what happened with Phil.
I'm curious how you would feel about A&E's rights if Phil's answers to those questions had been been that he thinks it's a sin when people use the Bible to oppose marriage equality, and then A&E suspended him after being pressured by pro-family religious groups, who then accused him of slandering religious people.
While an unlikely scenario, since pro-family groups don't have a lot of clout in Hollywood, surely you would be outraged at the attempt the silence Phil and to have 100% control over the narrative by pro-family interest groups in the media. And surely you would see this as an injustice. And that there's a lot more going on here that has people fired up than speech rights. Something truly sinister, if not vicious, is going on. And silencing people is just a part of the story that people are reacting to.

What makes Phil's "speech" story different from, say, an ordinary worker in any ordinary job getting reprimanded for speech, is the fact that a controversial issue (homosexuality) was spoken about by a popular television star (Phil) in the media, and it went against hollywoods orthodox narrative about that issue. He said what is not fit for popular consumption... according to who? The liberal thought-police that's who, who have taken it upon themselves to decide what we get to hear and what we don't get to hear and what's okay to say and what's not okay to say. And the thought-police came in with their sirens blaring and their fangs out. And Millions of Americans punched the thought-police in the throat and knocked them into last week.
And they've been gnashing their teeth on sour grapes ever since.

January 02 2014 at 3:46 PM Report abuse rate up rate down
EmployeeAtty

Mystic, I'll be writing about the applicability of religious discrimination laws to his comments next week. Stay tuned!

January 02 2014 at 3:59 PM Report abuse rate up rate down Reply
1 reply to EmployeeAtty's comment
Mystic

I'm not sure how rights works with contracted employees, but the most I know about their agreements is the Robertson's claimed their only stipulations were that they wouldn't compromise their faith or betray anyone in their family. So if something like that is anywhere in their contracts, then I'm not sure what A&E was intending to accomplish with the suspension.

January 02 2014 at 4:16 PM Report abuse rate up rate down

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