{"id":7219,"date":"2018-04-23T09:27:29","date_gmt":"2018-04-23T07:27:29","guid":{"rendered":"https:\/\/www.desertsun.co.uk\/blog\/?p=7219"},"modified":"2018-04-23T09:29:35","modified_gmt":"2018-04-23T07:29:35","slug":"employers-employees-and-free-expression","status":"publish","type":"post","link":"http:\/\/www.desertsun.co.uk\/blog\/7219\/","title":{"rendered":"Employers, Employees, and Free Expression"},"content":{"rendered":"

From the Washington Post<\/em><\/a>:<\/p>\n

In the hours after\u00a0Barbara Bush died\u00a0Tuesday, even those who didn\u2019t\u00a0share\u00a0the former first lady\u2019s\u00a0political views\u00a0expressed their condolences and\u00a0recounted warm memories\u00a0of\u00a0the Bush family matriarch.<\/p>\n

…<\/p>\n

But a creative writing professor at\u00a0California State University at Fresno had a blunt message for those offering\u00a0up fond remembrances:<\/p>\n

\u201cBarbara Bush was a generous and smart and amazing racist who, along with her husband, raised a war criminal,\u201d\u00a0Randa Jarrar wrote Tuesday night on Twitter,\u00a0according to the Fresno Bee.<\/p>\n

In another tweet, the professor wrote:\u00a0\u201cI\u2019m happy the witch is dead. can\u2019t wait for the rest of her family to fall to their demise the way 1.5 million iraqis have. byyyeeeeeee.\u201d<\/p>\n<\/blockquote>\n

None of this is remotely surprising to anyone familiar with political discourse in the US over the past ten years. The story continues:<\/p>\n

\n

Jarrar\u2019s words \u2014 and others that she used as she argued with critics for hours during an overnight tweetstorm \u2014 sparked a backlash that would\u00a0soon prompt the university to distance itself from her remarks.<\/p>\n

School officials also said they were reviewing the tenured professor\u2019s position, and the university\u2019s president and provost have rebuked Jarrar.<\/p>\n

…<\/p>\n

The professor taunted those attacking her, sharing a contact number that was that of\u00a0Arizona State University\u2019s\u00a0suicide hotline, and said she\u00a0was a tenured professor who makes $100,000 a year.<\/p>\n

\u201cI will never be fired,\u201d she tweeted.<\/p>\n

…<\/p>\n

Fresno State\u00a0originally responded to the controversy with a statement by\u00a0Castro that\u00a0said Jarrar\u2019s words were \u201cobviously contrary to the core values of our University\u201d but that they \u201cwere made as a private citizen.\u201d<\/p>\n<\/blockquote>\n

Leaving aside comments from the masses on Twitter, almost every prominent conservative commentator who has weighed in on this has specifically said she should not<\/em> be fired. This is good: as I’ve argued<\/a> in the context of\u00a0Juli Briskman<\/a> flipping the bird to Trump’s motorcade, I don’t think employers should have the right to fire employees for political (or any) remarks they make in private without first demonstrating actual, lasting commercial or reputational damage has been done to the organisation as a direct result. American lawyer Ken White, who goes by the name of Popehat<\/a> on Twitter, has done a good lawsplainer<\/a> on the Jarrar case, which is further complicated because the government is her employer. It’s worth reading in full, but here are the bits I found most interesting:<\/p>\n

\n

Generally, the First Amendment prevents only the government, not your employer, from punishing you for your speech. But what if the government is your employer? Well, then the First Amendment offers you some protection from being punished by your employer for your speech. That protection is governed by a multi-stage analysis.<\/p>\n

…<\/p>\n

The second stage of the analysis is another question: was the government employee acting as a private citizen, or as part of their job duties? If they were speaking as part of their job duties, the First Amendment doesn’t protect them.<\/p>\n

…<\/p>\n

Here, it seems clear that Professor Jarrar was not tweeting in the course of her duties as a professor. She was apparently on leave at the time and the scope of her duties do not include Twitter. Fresno State\u00a0proclaimed in a tweet\u00a0that she was speaking in her private capacity. (That was a clear reference to this analytical structure.)<\/p>\n<\/blockquote>\n

So, the law recognises the difference between speech delivered as part of their job duties and that of a private citizen. This is important.<\/p>\n

\n

The third stage of the analysis involves a balancing test: the interest of the public employee against the interest of the public employer in promoting the efficient delivery of public services. This is by far the most touchy-feely part of the analysis. Can the government employer show that the speech in question so disrupted the workplace that it interfered with orderly business in a way that outweighs the employee’s speech rights?<\/p>\n<\/blockquote>\n

And this for me is the crucial test that ought to apply to any employer who wishes to terminate the contract of an employee for speech which is wholly unrelated to their duties or profession. Today this only applies if the government is the employer, but I’d like to see this applied more widely as a matter of straightforward contract law. Popehat concludes:<\/p>\n

\n

Professor Jarrar was speaking as a private individual on a matter of public interest. It would be difficult for Fresno State to establish that the tweets about Barbara Bush themselves caused the sort of disruption of the school’s business that so outweighs her free speech interests so that it would justify her termination.<\/p>\n<\/blockquote>\n

Which I agree with.<\/p>\n

Now some of you will argue that Jarrar’s comments bring Fresno into disrepute, as many people now see what sort of morons that insinuation employs as professors. This is entirely correct, but it’s not the employee’s fault; the problem is the university for hiring morons as professors in the first place, not the employee for acting like a moron in a private capacity. Fresno obviously has no problem hiring people like Jarrar, and probably encourages opinions like hers in their lecture halls while simultaneously culturing an atmosphere which is openly hostile to conservatives. Their problem is this has now been widely exposed and they’re being subject to ridicule, but I don’t see why the employee should bear the brunt of this. If a university wants to go around hiring lunatics, they can’t then blame the lunatics for publicly expressing opinions which are met with approval in the privacy of their own corridors. Note that Fresno seemed quite happy with Jarrar and her performance until this episode, so why would they fire her?<\/p>\n

I expect as time goes on and we see more instances of employees being dismissed for expressing unapproved opinions in a private capacity, many cases will reveal enormous failings on the part of the management who should not have hired this person in the first place, or should have got rid of them for professional reasons years ago. If the employee is good, his or her private opinions shouldn’t matter. But the same is true if the employee is poor. Most of this is the result of weak or bad management, which appears to be widespread. It’s time it was improved.<\/p>\n","protected":false},"excerpt":{"rendered":"

From the Washington Post: In the hours after\u00a0Barbara Bush died\u00a0Tuesday, even those who didn\u2019t\u00a0share\u00a0the former first lady\u2019s\u00a0political views\u00a0expressed their condolences and\u00a0recounted warm memories\u00a0of\u00a0the Bush family matriarch. … But a creative writing professor at\u00a0California State University at Fresno had a blunt … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[57,104],"tags":[],"_links":{"self":[{"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/posts\/7219"}],"collection":[{"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/comments?post=7219"}],"version-history":[{"count":3,"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/posts\/7219\/revisions"}],"predecessor-version":[{"id":7224,"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/posts\/7219\/revisions\/7224"}],"wp:attachment":[{"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/media?parent=7219"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/categories?post=7219"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.desertsun.co.uk\/blog\/wp-json\/wp\/v2\/tags?post=7219"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}