Employment and Free Speech

A few months ago I wrote about the case of Juli Briskman, who was fired by her employer over a photo of her raising a middle finger to Donald Trump’s motorcade. Even though I thought Briskman was rather juvenile, and also rather dim for making the photo her profile picture on social media, I believed it was nothing to do with her employer and she’d been dismissed unfairly. Most of my commenters disagreed, either on the grounds that employers have, or should have, the right to fire anyone for any reason (or none), or that the photo could have cost the company future business.

I saw in the news last week that Briskman intends to sue her employer for wrongful dismissal:

A US cyclist who was sacked over a viral photo of her making an obscene gesture to President Donald Trump’s motorcade is suing her former employer.

Juli Briskman was fired by government contractor Akima LLC in November 2017 after a press photographer travelling with the president captured the image.

“Americans should not be forced to choose between their principles and their paychecks,” her lawsuit states.

Her lawyers argue her right to free speech was violated by the firing.

I think she should and I hope she wins. I understand people will disagree with me, but I don’t believe companies have a right to dictate your behaviour outside of working hours, with obvious exceptions for criminal behaviour. That the work contract is drawn up between two free and consenting parties doesn’t change that, unless specific behaviours which could lead to dismissal are identified. Most employers use the vague catch-all of “bringing the company into disrepute”, but I believe the onus should be on employers to demonstrate disrepute has been brought and damage has been done.

Now I understand the principle that any employee is free to refuse a contract which allows for their dismissal should their political opinions fall foul of the HR department, just the same as I understood The Atlantic had every right to fire Kevin Williamson. The problem I have is only one section of society is expected to abide by these principles while the other has none whatsoever. Many government workers – teachers, police, doctors, nurses, council members, BBC employees – frequently engage in politics, often of the extremist variety, at events and rallies which are fully endorsed by their management. I have seen videos from NUT conferences, and reports from the junior doctors’ revolt. I have seen profiles of the sort of people who turn up to anti-government protests, Antifa and BLM rallies, anti-Israel marches, and other events organised by the professionally aggrieved; a lot of them draw their salary from the taxpayer, and feel no reason to refrain from expressing their political views, with many even doing so in their professional capacity. Academia is another area chock-full of people who routinely express extremist political views safe in the knowledge they won’t even raise an eyebrow with their employers, let get alone hauled in front of management and fired.

So we have a situation where hardcore rabble-rousers on the left are free to spout their opinions and attack their political opponents from a safe position of lifelong job security, while everyone else should keep their mouths shut or risk being fired. Because principles. And the right wonders why it’s been utterly defeated in the culture wars.

Unless there is some serious pushback, and companies are required to demonstrate actual disrepute and damages (or at least a credible mechanism for the same, not hypotheticals along the lines of “if a defence worker had seen it, it could have cost us a contract”), political tests in the private, commercial sector will become the norm for all employees. They already exist in academia: ask Streetwise Professor how many Republicans can be found working in American universities. It will also become extremely risky to engage in any sort of political activity that doesn’t align with that of the HR department. I’d not be surprised in the next few years to hear of an employee being fired for admitting he voted for Brexit (or similar), along with a bland statement from the company spokesperson about how his behaviour “didn’t reflect the values of the company”.

It’s becoming increasingly obvious that being an employee is no longer about fulfilling what’s in your job description, but adhering to a vague set of moral values which are policed inconsistently by the sort of people who’d dob you in to the council for putting out the wrong bin. So-called conservatives seem to have nothing to say about this, other than to speak of lofty principles which bear little relation to reality. “HSBC closed your account? Barclays too? Well, that’s their right, you can always go and open your own bank.” Now principles are good; I generally don’t think we should kick in the doors of our enemies’ houses and slit their throats, for example. But if the other side has been slitting throats for some time and they’ve reached the next street, principles of non-violence aren’t going to help very much.

I have no time for companies that think they have a right to police employee’s behaviours and opinions outside of work, nor HR departments who scour social media looking for examples of wrongthink they can use to threaten underlings. People join companies to be compensated for the work they perform and the time they put in, not to have their political opinions suppressed and wholly unrelated aspects of their lives regulated. If this isn’t nipped in the bud now, it will get much worse. So far, it is mainly politics, but how long before being a Christian, or a smoker, or enjoying a drink, or mocking polyamory is enough to get you fired? And let’s be quite clear, these things are applied retroactively, as we saw with Toby Young.

Juli Briskman excepted, the political left will be only too happy with this state of affairs, meaning it falls to the right to put a stop to it. This doesn’t necessarily mean government intervention, just a more sensible interpretation of contract law. If I hire a builder for a house extension, and he turns up with the expectation of 3 months work, and a month in I fire him because I find out he supports the wrong football team, I believe he has grounds to be compensated for the entire job. He has been put to huge inconvenience and lost out on work of equivalent value he could have taken instead, because he didn’t meet criteria he was unaware of when he entered the contract.

Similarly, if an employee is fired for something wholly unrelated to their work (and the onus should be on the employer to prove any connection), they should sue for compensation on the grounds they were unaware of this specific criteria, they could not have reasonably foreseen it, and they could have taken a job they were more suited to had the employer not kept this criteria secret. The way I see it is this: if an employer hires somebody who’s personal behaviour and political opinions don’t match those of the company management, it is their mistake, not the employee’s.

Leaving aside the suggestion that Briskman’s photo might have cost her employer work, if “not disrespecting Trump’s motorcade” was a requirement of her employment they should have made this clear during the hiring process. If they didn’t, she has the right to engage in any legal activity outside her working hours that she pleases, including flipping off Trump’s limo and posting the photo on social media. I’m glad she’s suing, and I hope she wins.

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37 thoughts on “Employment and Free Speech

  1. So far, it is mainly politics, but how long before being a Christian, or a smoker, or enjoying a drink, or mocking polyamory is enough to get you fired?

    Pretty sure I’ve seen reports of companies making people take drink/drug tests. Also, sports which routinely drug test competitors for performance enhancing drugs then ban people for having traces of ‘lifestyle’ drugs in their system. Fair enough if a team has this as part of their contract, not least as most of these drugs will reduce performance, but when governing bodies mandate bans for eg weed, I’m not so sure.

  2. The problem with “freedom to contract” arguments in employment law is that usually the employee is far more dependent on their employer than vice versa, and their bargaining power is nowhere near equal. So I don’t think libertarians who promote “let the firm treat its employees howsoever it likes, provided they signed a sheet of paper consenting to it” are actually maximising the aggregate of human liberty by doing so. This is one such issue. Large employers could clearly, if they chose to, play a significant role (probably greater than any other non-state organisation) in the suppression of political dissent or other philosophical thoughtcrime unless workers’ rights of speech and belief are protected.

  3. I think we’re way beyond the point where the outcome of a lawsuit like this one will make any kind of a difference in how companies behave in general. She may win, if she gets a judge who thinks Trump is an asshole who deserves to get flipped off. But that won’t set any kind of precedent for the next guy who gets fired for having right-wing opinions, that’ll be different somehow.

  4. Modern employment contracts often have a clause about social media use and not bringing the company into disrepute. The problem is that “disrepute” is a subjective term. A left-leaning judge could decide that it applies to right-wing cases but not to left-wing ones. Even without Britain’s trial-by-headline culture, an even-handed judge would measure disrepute by column inches generated. He’d quickly find that right-wing cases generate more opprobrium than left-wing ones.

  5. “It’s becoming increasingly obvious that being an employee is no longer about fulfilling what’s in your job description, but adhering to a vague set of moral values which are policed inconsistently by the sort of people who’d dob you in to the council for putting out the wrong bin. ”

    That’s public sector and large corporate world (and mostly the highly protected world’s). Generally stuffed full of useless parasites living off the host.

    And as a result, the lead parasites don’t want anyone making a scene or drawing attention. Theyre obsessed with preventing any whiff of racism, far more than they’re obsessed with delivery. They know that will bring in the media. And once the media are on your case they might find more. Then you’re out of overpaid jobs and into low paid, hard work.

    One reason I generally prefer things like SMEs and manufacturing is that you get judged on delivery and little else. It means working harder. It also means I’m secure though. If I lose some work, I can get some more in a few weeks. If someone works for a parasitic consultancy that only exists because of 1000 earmarks in a federal budget, theyre in that world of “decent behaviour”. They’re judged for this nonsense.

  6. I happen to think poor impulse control, which is what she showed, is grounds for termination. I for one don’t give a damn what someone’s political beliefs are in the workplace. I do care that they might lose control of themselves at work. Good manners and courtesy should still count for something.

  7. I happen to think poor impulse control, which is what she showed, is grounds for termination.

    She didn’t show it at work, though. If showing impulse control 24/7 was a job requirement, they should have specified it.

  8. I happen to think shooting the president, which is what she did, is grounds for termination.

    She didn’t shoot him at work, though. If not shooting people 24/7 was a job requirement, they should have specified it.

  9. There was an important phrase in my post, which was:

    …with obvious exceptions for criminal behaviour.

  10. You are correct, it didn’t happen at work. I would however have a close eye kept on her. My bet is she’s shown the same sort of behavior at work, she just hasn’t been caught at it yet.

    I wouldn’t be surprised that in the ongoing legal action she will be discovered to have been a loose cannon careening across the deck.

  11. I wouldn’t be surprised that in the ongoing legal action she will be discovered to have been a loose cannon careening across the deck.

    I could well believe it, but that would also make her management incompetent.

  12. I think you are spot on here Tim.

    Yes, I understand it feels good to fight fire with fire, but the long term implications are quite scary.

    Do we really want to work in a climate where we are in constant fear each day that someone will come across something we’ve said in the past that didn’t tow the official “company line” – or rather party line that costs you your job?

    People have mortgages, bills, families to feed and provide for, etc. Most people don’t have any savings. They live paycheck to paycheck. Even if they do have savings, it won’t last long.

    I know it feels good to stick it to people like her who wouldn’t hesitate to do the same to us deplorable, but now I wonder if she may think different considering the situation it’s put her in.

    SJWs, Antifa, and a lot of these other radical types may be worthy of disdain and even sadness, but do we really want to see them getting kicked out of their homes because they can’t pay their rent? Fix their cars? Put food on the table for their kids?

    This targeting of people and their employment goes way too damn far. I always wanted to fight fire with fire, but now that I’m married and I have two toddlers to provide for, I’ve come to a different conclusion.

    I’m the main bread winner for my family and we are on a tight budget. I now have very different thoughts on targeting people’s jobs and their livelihoods for thing’s they’ve said offline, social media, ect that have nothing to do with their employers or representation of their employers.

    Many people I know all across the spectrum are living paycheck to paycheck. I question the idea of reducing even those in the middle class to a paycheck to paycheck situation because of thing’s they’ve said.

    I hope she wins.

    I also home conservatives and other “deplorables” start suing as well.

  13. A curious idea that springs to mind as a result of this picture is the question of whether she has done all of this deliberately, in the same fashion that a certain football player became notorious for turning up drunk or high to scheduled training sessions in order to get out of his contract and be signed by a club offering more money – Precisely for the reason that Jimmers mentions.

    It follows that you don’t put an image like that upon your social media page unless you are either so stupid that you literally do not realise it is offensive or are quietly gambling that someone at your company might then confront you about it. You are then free to noisily proclaim your victimhood as you are dragged from your desk by security, screaming about right wing oppression. – Exactly what we are seeing.

    Here is another do-gooding worthy who has decided to wade in and is doing it deliberately, in the quiet hope that someone tells her to shut up:

    https://www.japantimes.co.jp/news/2018/04/06/national/amid-uproar-gender-discrimination-sumo-female-mayor-barred-speaking-ring/

    Also notice how the media are determined to find out the name of the hospital nurse who helped save the man’s life: This will then shit up the right wing nationalists who will campaign for the hospital to fire her for violating a “sacred” tradition. The hospital don’t want the attention and will get shot of her, and the journalists are then free to write easy, noisy articles screaming about male oppression being present in every corner of life in the country, and hopefully get some antiquated tradition trashed.

    “The way I see it is this: if an employer hires somebody who’s personal behaviour and political opinions don’t match those of the company management, it is their mistake, not the employee’s.”

    The trouble with that idea though is that awards me carte blanche to ask any nosey question of you, as a prospective employee, to see whether your political/social values to conform to those of my company upfront as a condition of hiring you, and presumably also do so upon an ongoing basis as political affiliations change and/or you were economical with the truth. – I’ve got to ask, as it later might prove relevant.

  14. Too true. A number of loose cannons do manage to get promoted don’t they?

    At any rate, all of this is probably news of the plane crash variety. Millions of successful landings aren’t news. The one crash is.

  15. It is not made clear in either the post, or comments thread, that she was NOT fired for flipping off Trump’s motorcade.

    She was fired for ostentatiously sharing that photo all over her social media – where she was clearly identifiable as being an employee of the firm (i.e. she was gloating about it).

    Had she flipped the bird to Trump – I couldn’t care less.
    Had her social media presence merely been a generic “Julie Briskman” and she was sharing photos of herself flipping off Trump – I couldn’t care less.

    She plastered her employer’s name all over her social media, alongside photos of her flipping off their main client – even if she’d left it at that, I wouldn’t really mind.
    But she gloated.

    This is what got the boss’ attention.

    I was firmly in the “She got what she asked for, & what she deserved” camp.
    I’m no longer of that belief. She should certainly have been carpeted, and in a “no coffee, no biscuit” interview with the boss been giving a very realistic warning.

    I’m an employer (referred to by a commenter above, as a “boss”)
    I know these things do not happen in isolation.
    It is highly unlikely she was a model employee,
    then to the surprise of all who knew her, suddenly out of nowhere she is proudly announcing she is an employee of Company X, and sharing photos of herself shoving it to the man.

  16. You all keep saying “It should have been in her contract”. Most employees in the USA don’t have a contract or a union agreement. They are ‘at will’ employees, and can be fired at any time for any (or no) reason. (Unless they are part of a ‘protected’ class).
    Briskman has no legal grounds for a lawsuit; she is probably hoping for a settlement from a publicity-shy company.
    ‘At will’ employment can be harsh and unfair, but if companies can’t fire they will be reluctant to hire, and this leads directly to other evils, such as high youth unemployment and an unproductive workforce.

  17. You all keep saying “It should have been in her contract”. Most employees in the USA don’t have a contract or a union agreement.

    So where would her working hours, duties, and compensation be captured?

    ‘At will’ employment can be harsh and unfair, but if companies can’t fire they will be reluctant to hire, and this leads directly to other evils, such as high youth unemployment and an unproductive workforce.

    I agreee, but somehow the US managed quite well for a few decades before companies decided to become the morality police of their employees; go back 30 years and I expect few companies waffled on about their “values”, much less demanded employees adhere to them outside of work.

  18. She plastered her employer’s name all over her social media, alongside photos of her flipping off their main client – even if she’d left it at that, I wouldn’t really mind.
    But she gloated.

    It that’s what happened, then yeah, fair enough.

    I know these things do not happen in isolation.
    It is highly unlikely she was a model employee,
    then to the surprise of all who knew her, suddenly out of nowhere she is proudly announcing she is an employee of Company X, and sharing photos of herself shoving it to the man.

    I agree, that is probably the case.

  19. “SJWs, Antifa, and a lot of these other radical types may be worthy of disdain and even sadness, but do we really want to see them getting kicked out of their homes because they can’t pay their rent? Fix their cars? Put food on the table for their kids?”

    Yep.

    Lynching would be better, though. Just tar & feather their kids..

  20. “SJWs, Antifa, and a lot of these other radical types may be worthy of disdain and even sadness, but do we really want to see them getting kicked out of their homes because they can’t pay their rent? Fix their cars? Put food on the table for their kids?”

    Since that’s exactly what they do and would do to people that do not share their views, I’d be delighted if it happened to them. That said, fix their cars?” Why would they have cars that pollute and kill the earth (allegedly)? Same with “Put food on the table for their kids”. I rather have the impression that they profess a return to self sustainability or some crap so they would always have the food they produce.

  21. “I understand people will disagree with me, but I don’t believe companies have a right to dictate your behaviour outside of working hours, ”

    Its not about dictating behavior – its about freedom of association.

    Your spouse dictates your behavior – in that she won’t stick around if you don’t meet certain standards she sets.

    So do your friends and everyone else you interact with.

    You’re free to say whatever you want – and so is this particular person – but others are free to say ‘you are not the sort of person we wish to associate with’.

    To do otherwise *violates the 1st Amendment rights* of the company owners.

  22. “I agreee, but somehow the US managed quite well for a few decades before companies decided to become the morality police of their employees; go back 30 years and I expect few companies waffled on about their “values”, much less demanded employees adhere to them outside of work.”

    You are way wrong there. 30 years ago large companies were just as bad as today – just about different things. They all work hard to protect their brands from controversy.

  23. You’re free to say whatever you want – and so is this particular person – but others are free to say ‘you are not the sort of person we wish to associate with’.

    Indeed, hence companies are free *not* to contract with anyone they please. But once they’ve contracted somebody in employment, that changes. See my example of the builder in my post.

    You are way wrong there. 30 years ago large companies were just as bad as today – just about different things.

    I’m fairly sure companies weren’t firing individuals for their political views after campaigns by hordes of largely anonymous non-customers bombarded them with correspondence.

    They all work hard to protect their brands from controversy.

    I’m not saying they didn’t.

  24. I tend to agree Tim. I also think Agrammamon has a point. Its not like dozens of cases where internet detectives spent time tracking down her employer to ruin her life. They as a govt. contractor had legit. concerns about her post.

    For every case of a left winger firing there are 10-15 liberatian or conservative firings-so I want her to win if it will sets new rules for everyone or be destroyed by legal fees if it just going to benefit the activist left. If she wins I think they will define right wing speech as hate speech and left wing speech as political. So entrenching SJW power.

    I also think there is a difference between speech, being a SJW or activist and member of Antifa. Antifa is a revolutionary voilent political movement. I think employer should be free to fire them. In fact in some fields they should be required to-education, defense and law enforcement.

    I also suspect she was useless at work. Because she obviously dosen’t have a filter, and from her twitter was a bitch.

  25. @ZT “Briskman has no legal grounds for a lawsuit; she is probably hoping for a settlement from a publicity-shy company”

    Yes exactly she has zero grounds for a lawsuit, it’s just another ambulance chasing attorney trying to extract go away money for their client, which is the real travesty of justice here.

  26. I’ve been a boss, and have hired and fired my employees.

    I don’t care where an employee exhibits stupid and careless behavior. If she does so outside of work, I count my blessings that I was spared the effect, and replace her before she can bugger my efforts.

    Her company’s main client was the government? She was stupid and careless to name her employer as she bragged. I would have fired her in a New York minute. (But I wouldn’t necessarily announce why. Living in an employment-at-will jurisdiction, I’d simply tell her that I could no longer use her services. Why invite lawsuits?)

  27. She’s written a brief opinion piece in the Washington Post.

    If her 20/20 hindsight from two days ago is to be believed (I’d say quite some filtering required when reading her account)
    Then it happened thus:

    1/. She cycled around her suburb on a day off, as you do.
    2/. Trump’s motorcade happened to go past.
    3/. She idly gave it a middle finger (knowing who was in the limo)
    4/. A freelance press photographer in or following the motorcade snapped the photo.
    5/. It was published by wire services.
    6/. She downloaded the photo & used it as the background photo on ALL her social media accounts. (facebook, twitter, etc.)
    7/. The photo could be of anybody, nobody much noticed.
    8/. So requested an interview with her boss, & told him that she was the lady in the “viral photo” giving Trump the flip.
    9/. The boss couldn’t believe what he was hearing, & said (paraphrased by me): “FMD, you moron, why did you tell me this in a formal setting? Now I’ve got to fire you.”

    (Her LinkedIn shows she’s had a gazillion jobs in her career, all in the field of “Liasion, community, marketing, digital strategy” and other such bullshit. She’s been things like an admissions officer at a school.)

    Digital Strategy. (That phrase leaped off the page at me)

    (Her LinkedIn also shows she usually holds down a job for between 5 – 8 months, though a few earlier in her career lasted a year or two.)

  28. Tim, rather more than 30 years ago, a whole slew of people in th USA were put out of work or business, blacklisted even, for (allegedly) having the wrong political views!

    This isn’t as new as you think.

  29. Her LinkedIn shows she’s had a gazillion jobs in her career, all in the field of “Liasion, community, marketing, digital strategy” and other such bullshit. She’s been things like an admissions officer at a school.

    Perhaps bizarrely, this is why I’m not siding with her employers. If an employee is useless and has a CV like that, then she should not be hired. If she is hired, the management has failed. If she is useless once hired and not dispensed with, then the management has failed a second time. This is especially the case if they are employing people on an “at-will” basis, what excuse do they have for retaining her?

    So from what I can tell, they hired an obviously useless person who probably proved to be useless, but they did nothing until she flipped off Trump’s motorcade and posted it on social media, then they fired her. In other words, they failed to do their most basic function and then decided to do something stupid which will bring a lot worse publicity down on their heads.

    I see a lot of this in modern management, which includes politics, policing, and local administration: they completely fail at the basics, but still want to wade ever-deeper into our personal lives and expand their remit. Then when the do take action, it’s usually stupid and makes things worse.

    Solving the malaise for the long term will require getting rid of useless managers and appointing good ones, not firing idiots like Briskman for stuff she does outside work.

  30. Tim, rather more than 30 years ago, a whole slew of people in th USA were put out of work or business, blacklisted even, for (allegedly) having the wrong political views!

    Yes, but there is a difference: if seriously influential people, e.g. politicians or masses of customers lobby a company they will cave, for sure. But that’s not what is happening now: a mob of anonymous, random, non-customers just bombard the management knowing there is no cost to them firing the person being complained about.

  31. If Facebook / Twitter did not exist and anyone put up hundreds of billboards with a picture of them flipping the finger and their employer’s name, you’d expect the employer to do something. All organisations today need / have a formal social media policy. Think your employer must have some power to take action if their interests have been damaged – which is quite different to them dictating behaviour out of office hours; and at the same time people need to be more responsible with what goes on their social media – I cannot see how it is wrong if someone operating heavy machinery is sacked following posting pictures of heavy boozing the night before, whether or not they seem ok the morning after. You can be great at your job, but if posts on your social media accounts are offensive or anti-employer, these are now instantly visible by thousands.

    It’s not entirely one-way as some public sector staff have been disciplined for inappropriate use of social media, moaning online about how useless their hospital is, for instance: https://www.telegraph.co.uk/news/health/10285422/Facebook-nurse-banned-for-inappropriate-postings.html

    The hounding out of Tim Hunt, on the other hand, was an outrage:
    https://www.theguardian.com/science/2015/jun/13/tim-hunt-hung-out-to-dry-interview-mary-collins

  32. As usual, Saint Milton got here first. He warned about the stupidity of demanding ‘social responsibility’ from corporations – and nobody listened.

  33. Think your employer must have some power to take action if their interests have been damaged – which is quite different to them dictating behaviour out of office hours;

    I fully agree.

  34. This case reminds me of the Mozilla CEO who dared to donate a few hundred to an unapproved cause. Although, he was “asked” to leave? Hounded out? Or was he actually fired?

    And also that woman who tweeted something stupid then got on a plane to some African country. While in flight, the Twitter mob got out the torches and pitchforks and by the time she landed, she was out a job.

    Do those two also have grounds for suit? They were fired/hounded out for perceived damages to company image.

    I guess not though – “Everyone” agrees that Wrongthink automatically damages a company’s image, per the Twitter mob, but flipping off Literally Hitler, well, that’s Free Speech and #Resistance!

    So the law is applied on a whim.

  35. Brendan Eich was effectively forced out of the company he founded when a gay worker said he would feel unsafe working at Mozilla when someone who had donated to Proposition 8 was on the Board. And so he had to go. For donating $1,000 to a legal political campaign 9 Which won, but was lost in the courts when the Californian AG and Governor refused to defend it in Court, and they found a gay activist judge to rule it unconstitutional.
    Justine Sacco was destroyed by a baying mob

  36. In my opinion, Justine Sacco has as much of a case against her former employer as Juli Briskman does. Unless I have the #HasJustineLanded story wrong, she was not operating in official work capacity when she made that stupid tweet. The difference as I understand it, and I could be wrong, was that the baying mob wanted her head, and the company caved to avoid damage to its reputation and loss of business, which was promised by said mob, I guess. In the Briskman case, the company made the decision(?) that this tweeted image would damage their rep and cost some business, and so sacked her.

    Two women were sacked for what they posted on social media. It seems that the baying mob made the difference between rightful and wrongful firings. That kinda scares, me to be honest. But maybe I misunderstand the whole thing.

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