Free Speech, Private Power, and Private Employees

>> Eugene Volokh: Hello, and welcome to Free Speech Unmuted. I am one of your hosts, Eugene Volokh from the Hoover Institution, and my co host is Jane Bambauer from the University of Florida.

>> Jane Bambauer: Hi, Eugene. All right, so we're gonna pick up on some threads that were left over from the last time we talked about net choice.

That's the case where the Supreme Court decided, sort of, or at least strongly suggested that states like Texas and Florida could not regulate social media platforms by forcing them to not discriminate based on the basis of political viewpoint. And one reason that that case was hard, I think, is that there is some ambiguity over how much the government, especially state governments.

But federal governments too, I suppose, can do in terms of requiring private actors to host and tolerate different types of speech and associations and viewpoints. And so, I'm really looking forward to learning from you today because you have written extensively on this, especially in the context of private employers.

But I'm also learning from you that there's quite a bit of law out there, sort of scattered across all 50 states that limit what private schools, private shopping centers, private landlords, etc., can do. And this is especially interesting in this political moment because I think many people have concerns about the power of private actors to basically be the enforcers of cancel culture.

So when cancel culture goes beyond kind of just sort of social pressure and actually starts affecting people's lives, homes, livelihoods, etc., people start to get nervous. So what can the government do? I'd love if you could start by telling us a bit about, about private schools.

>> Eugene Volokh: Sure, well, so let's just begin with the First Amendment point that I think a lot of people don't know.

And then they learn. They say, now we know it and it's the whole story, and it's not the whole story. So the first point to keep in mind is the first word of the First Amendment is Congress, Congress shall make normal. The 14th Amendment applies that to states, no state shall do certain things.

States includes various state entities. Local governments are seen as creatures of the state and agencies of the state in a sense. Likewise public universities, public school district. So, we know from that that generally speaking, the First Amendment does not constrain private entities. So if an employer fires you, private employer fires you because of your speech, even your off the job speech, that's not a First Amendment violation.

So that's important to know. But it's also important to know that of course the First Amendment is not the only game in town that an analogy might be with regard to discrimination, race and sex discrimination. Equal Protection clause only constrains the government. So if a private employer fires someone based on the race or sex or religion or what have you, well, that's not a First Amendment violation, but it may be a violation of Title VII of the Civil Rights act of 1964.

Federal statute that applies similar norms to private employers, at least certain kinds of private employers. And almost all the states also have their own laws along those lines. So likewise, although to a smaller degree with regard to speech. So, my own state, California, our state, Hoover State, is unusual in that it prohibits private colleges, excluding religious colleges in certain situations.

But private colleges and universities, and even private high schools from essentially imposing speech codes on their students. I oversimplify here. In practice, there are certain kinds of restrictions that can indeed be imposed. But as a general matter, in California, a private high school cannot lawfully expel a student because they disapprove of the student's political speech.

Let's say, or even sometimes non political speech, including speech on campus.

>> Jane Bambauer: Does that interfere at all with religious liberty?

>> Eugene Volokh: Well, right. So there is an exception for private religious high schools in certain situations and private religious colleges. An interesting question is how justifiable is it to have this kind of exception?

You might say that's undue benefit to these religious schools where as their secular competitors aren't entitled to create the environment that they want. But yes, the statute takes into account the possibility that religious schools may deliberately want to have an environment that reflects their values and respects that, but doesn't extend the same respect to private institutions.

Just like private employers of many sorts have been constrained in many ways, we'll get to that in a minute. So that is California and colleges and universities. Now, what about property owners? What about large shopping malls? Well, California courts have interpreted their state constitution as, or I guess our state constitution as extending free speech rights.

Not First Amendment rights, that's a matter for the federal Constitution, but extending free speech rights to visitors to private shopping malls. So if somebody wants to leaflet, let's say, or gather signatures at one of those private large open air shopping mall, not every little strip mall. One of those large block sized ones, then they have a right to do that.

The mall can impose certain kinds of content neutral time, place and matter restrictions, but it can't categorically exclude those people. That issue.

>> Jane Bambauer: And by the way, when one shopping mall in California tried to challenge this California constitutional right, the Supreme Court allowed the state to proceed anyways, right?

>> Eugene Volokh: Exactly, that's the famous Pruneyard case, or the Pruneyard shopping mall said, well, this is a taking of our property because it interferes with our property rights. And the court basically said, property rights are subject to legislative control. If they just took away your mall, then you'd have to get just compensation.

But if they're limiting your ability to exclude people, well, this kind of situation, that is permissible. Likewise, the shopping mall said, well, what about our right to be free from speech compulsions like requiring us to host speakers is just as bad as requiring us to speak? No, said the court, it's not just as bad.

And that in fact, if the state wants to mandate that you have to accept certain speech not on your signs, not even in your stores, but in these outside areas where visitors generally gather, then the state can impose that requirement. Now, very few other states have followed this rule, but some have.

New Jersey, for example, also takes a similar view. New Jersey and Pennsylvania also apply this rule to the open areas of private universities. So if somebody wants to probably not have a massive demonstration, but wants to hand out leaflets on the premises of Princeton, let's say, or of Penn, in the open areas.

Even if the person is not a student, so long as that area is open to the public generally, it'll be open for some degree of speech by the public as well. Massachusetts and Washington, interestingly, take a narrower view. They say our state free speech constitution doesn't apply to private property.

But our state elections constitutional provisions that deal with gathering signatures to qualify a candidate or an initiative for the ballot, those do apply to these large shopping malls. And so as a result, there's this content-based but viewpoint neutral mandate that large shopping centers allow this particular kind of political speech.

Now, that's large shopping malls. What about smaller places? What if you go to a restaurant and the restaurant says, we don't like you because we know that you belong to some political organization we dislike. Or we don't like your T-shirt or we don't like what you're saying to your fellow diners over dinner?

Well, in most places it's private property, they're entitled to kick people out based on this. But in a considerable number of cities and counties in the country, there are exceptions. Excuse me, there are provisions that treat political discrimination, kind of like religious or racial discrimination. That is forbidden in those places, in places of public accommodation like restaurants and other places open to the public.

And the laws in those locales treat certain kinds of political behavior the same way as a prohibited basis for exclusion. Some are fairly narrow. So in DC and in Fort Lauderdale, Florida, you can't exclude someone from a place of public accommodation because of their party membership. There was an example where someone, I think white supremacist or alleged white supremacist.

A member of such an organization was excluded, I think from a health club, and he sued. And the DC court said, well, the statute says political affiliation. If they wanna kick you out because you're a Republican or Democrat or green or libertarian or a member of some party, even a white supremacist party, then that would be impermissible.

But other bases are permissible. On the other hand, in some other places. One example that's particularly clear is Seattle, Washington. Its discrimination based on any political idea or belief, including conduct reasonably related to such ideas or beliefs, like maybe wearing a T shirt that expresses certain kinds of use.

So, as you might gather, those laws are not heavily enforced. You can get a lot in damages for them. But I've seen some enforcement procedures though. So that is landlords and property owners, excuse me, commercial space owners and property owners. What about the landlords? Well, it turns out that some jurisdictions also protect tenants from being evicted because of their political perspective or political speech.

That's some of those cities and counties that apply this rule to places of public accommodation. Plus also of all places, the state of South Carolina has a statute that restricts landlords ability to expel the tenants based on their political advocacy. So those are all interesting points, but they're just appetizers before we get to the main course.

And that is employment. And this is particularly.

>> Jane Bambauer: It's a big one.

>> Eugene Volokh: Pardon? It is a big one. And why is it a big one? For several interrelated reasons. First of all, this is the source of people's livelihood. I mean, nobody wants to be kicked out of a restaurant because of what they're saying.

But you have the choice of being kicked out of a restaurant and being fired from your job. You're gonna be a lot more worried about being fired from your job. Relatedly, I think a lot of people's kind of concerns about what might loosely be called cancel culture. Imprecise term, but I think it conveys the message here are especially strong when people's livelihood, people's careers are being jeopardized.

So if somebody just has to deal with public criticism, well, too bad for you. That is itself the exercise of free speech. What if somebody gets kicked out of some voluntary association, maybe from their church? That would be protected, of course by religious freedom or just from some nonprofit group or whatever people say, we don't think you're a good person who supports our values.

That's up to them, but if you lose your job, then, then that's a more serious problem. And among other things, it's also much more of a deterrent that people might say, I'm gonna say whatever I wanna say, and if I lose some friends, that's fine. But if I'm going to end up unemployed and possibly homeless, unable to take care of my family, well, then in that case I better keep.

>> Jane Bambauer: Maybe I'll just shut up. Yeah, so let me ask you a couple questions before going deeper into employer. So it seems to me that you could say the same thing about landlords, and yet we don't see a ton of statutes. I mean, you mentioned a couple.

>> Eugene Volokh: Right.

>> Jane Bambauer: So is that just because as a practical matter, for whatever reason, landlords are unlikely to and have not been in the habit of screening on the basis of political affiliation?

>> Eugene Volokh: That is my guess. So one thing to keep in mind is a lot of these laws are local.

There's not a lot of legislative history, not a lot of discussion that's easily accessed as to why they were or were not enacted. They were also enacted throughout many decades or case of employment more than a century in some situations. So different times in different places. So it's not part of a single coherent movement.

But my guess is, it's the rare landlord that cares about the politics of his tenants. I'll tell you, I own some rental property. I want tenants who pay their rent and who don't trash the place and who don't make undue requests for repairs and so on and so forth.

And if they're communists, I don't like communists. I was born in a communist country, my parents had to live under communism. But that's their business, it's not mine. On the other hand, with employment, I think a lot of more employers care about this because they have to interact more with their employees.

And the employee's speech is sometimes attributed to them by customers in a way that I think is very rare with tenants.

>> Jane Bambauer: Yeah, I mean, and that's also why. I mean, for exactly that reason. That's also why even when you see a cancellation campaign, they might say, let's make sure to tag the employer. They don't think, let's see who rents them their apartment.

>> Eugene Volokh: Don't give them any ideas. So in any case, so it turns out that I oversimplify here, about half the states and then a smattering of cities and counties also interesting, different rules in some of the territories and in DC.

Have some degree of protection for private employees from retaliation based on political activity by their employers. Interestingly, I believe these are the oldest employment discrimination laws in the country. Long before there were bans on race discrimination in employment and before even bans on union membership discrimination that came relatively early in the 20th century.

There were bans and discrimination based on how you voted. Starting around 1839 were the first state statutes that I found that banned threatening someone with employment consequences. Or even other business consequences, like threatening you to withdraw their business based on how they voted. Remember, this was before the secret ballot was adopted in the US.

So the worry was, here we've enfranchised all of these poor white men who were often just, they were working for a living from, in some local factory. Let's say there are a thousand people working in factory, you enfranchise them. But maybe that just means that the employer gets a thousand votes because he essentially says, vote my way, I'm gonna know how you voted.

Vote my way.

>> Jane Bambauer: Come prove that you voted my way.

>> Eugene Volokh: Right, right, right, right, there you go. So starting around 1839 there were these bans on threatening people with retaliation, employment retaliation based on how they voted. Over the next couple of decades there began to be also bans on discrimination, or often was phrased in terms of discrimination, but basically firing someone because of how they voted.

And in the late 1860s in Louisiana and South Carolina, they were the first prohibitions on employment action based on not just how someone voted, but whom they were advocating for based on their speech, although their speech only about a candidate. Interestingly, these weren't state constitutional provisions, they weren't state statutes, they weren't city ordinances, they were military governor orders.

So this is during reconstruction. And as best I can tell, what happened was that the governors, military governors appointed by the Republican administration, Federal administration in DC. The military governors were concerned that the large planters who were still Democrats, would basically frustrate reconstruction by threatening their employees. Both poor white employees, but also the newly freed and newly enfranchised blacks, with retaliation if they voted Republican.

So in any event, the military reconstruction stopped not long after. But Louisiana and South Carolina are main states that prohibit this kind of retaliation. Now if you look at the various state statutes, so by the way, if you look at it over time, you see some of them as the voting began very early in the 1830s.

As the speech began in 1870s, there was a smattering throughout the late 1800s, early 1900s. So a lot of them are pre-civil rights era, like I believe the California one was I think from 1915. And then there were more such things, especially at the city and state level, enacted in the 1970s following the Civil Rights era, following the race religion discrimination model, and then a handful since.

So this happened over time. If you look over space, you see that the rules are actually quite different in different places. So loosely speaking, in some places the rules apply to pretty much all speech. And the clearest example are Colorado, North Dakota, because there employers are banned from, again, I oversimplify by discriminating against employees based on their lawful activities.

>> Jane Bambauer: Lawful activities of any sort.

>> Eugene Volokh: Of any sort. And I think one of the things was, and I'm sorry, this is lawful off duty activities, right? They might be smoking, don't want employers to fire people because they smoke, or drinking or hunting I suppose or something like that.

But especially there's a bunch of such cases in Colorado, courts say, well, speech is a lawful activity. So that covers pretty much any lawful off duty speech. Connecticut has a statute that quite expressly focuses on speech. And there the Connecticut Supreme Court interpreted it as providing not absolute but substantial protection for speech on matters of public concern.

California and a bunch of other states ban discrimination based on political activity. Now political activity could mean two things. It could mean engaging in politics, campaigning for or against the candidate or for, against the ballot measure, or contributing money to some political cause or being a member of a party.

Or it could mean what we think, what we First Amendment people label political speech. Which is talking about a wide range of things that are related to public policy and what the government and society ought to do, even if it has nothing to do with this particular election.

So the California Supreme Court in the late 1970s case which involved pro-gay rights advocacy said, well, political activity means advocacy of any candidate or cause. And that includes just advocacy of whatever belief system you might want. So opposition to gay rights support, whatever else.

>> Jane Bambauer: So it's political speech.

>> Eugene Volokh: Political speech.

>> Jane Bambauer: Yeah.

>> Eugene Volokh: So then there are some states though that quite expressly say that you're protected as to your campaign related activity, election related activity. Washington state is an example, New York state. So in Washington state, if you're speaking out for against a ballot measure or for against the candidate, you can't be fired for that.

But if it's unrelated to the candidacy, excuse me, to an election, if it's about climate change or about racism or whatever else not tied to a particular election, well then in that case that's not protected by the statute. But that's in Washington State generally. If you're in Seattle, there's a city ordinance that protects political activity in a much broader sense, including political speech, kind of California. So there are various, various different rules in different places. And there are also a bunch of states where there's even more limited protection, but still non trivial protection. Like in some states you can't be fired because you contributed to some political campaign, contributed money. You can be fired for what you say, but not for your contributions.

Or you can't be fired for signing an initiative or referendum petition. So it varies quite a bit because these are state laws, and states and cities and counties often have very different rules. So we've got this patchwork, but it's just a reminder that employers and lawyers and citizens need to know not just the First Amendment picture, which is it doesn't apply to private entities, but also the state statutory picture and the local ordinance picture.

>> Jane Bambauer: Well, okay, so I have a hypothesis.

>> Eugene Volokh: That's why we get paid the big bucks.

>> Jane Bambauer: Yeah, I guess, so I have a hypothesis, I wanna know if you know whether this is true or not. I would guess that despite this patchwork, the big differences in the laws mostly don't seem to have a make a difference on the ground for the following reasons.

Here's my theory. The large employers would not be very interested in discriminating on this basis anyways. Although maybe that's not true and so maybe they're more likely to be very aware of what the law is governing whichever office it is that they're looking at. But then small employers and employees probably have no idea that they're under these obligations.

>> Eugene Volokh: Right, right, I do think that a lot of these laws are not well known even among employment lawyers. I think employment lawyers know you can't discriminate based on race, religion, sex, national origin under the federal law, Civil Rights act of 1964. That's for employers, I believe that at this point, the threshold is just 15 employees, so medium to large employers.

And they also know that as the smaller employers, you got to check the law in your state, a lot of states prohibit that. Sexual orientation, of course, the Supreme Court recently said together with gender identity is also prohibited by the ban on sex discrimination.

>> Jane Bambauer: They probably also know National Labor Relations Board stuff related to concerted activities, union, yeah.

>> Eugene Volokh: Right, you can't discriminate based on union membership.

>> Jane Bambauer: Or even speech leading to unionization. And they probably know, well, yeah, I don't know. I'm not sure what else, yeah.

>> Eugene Volokh: A lot of these laws in a lot of these states, I've never even seen any citations do.

I mean, I think in Connecticut, there's actually a lot of litigation of the Connecticut statute. My guess is employers are quite familiar with it. California, there's a decent number of such claims, but I expect that many employers and lawyers aren't that up on. And in some places, I would be shocked if people were aware of them because they're almost never cited.

By the way, the California law and some other laws make it a crime to fire an employer employee for political activity. It's kind of seen as, not quite interference with elections cuz it's not limited to elections, but it's seen as kind of impermissible leveraging of economic power into kind of coercive political power.

So those are the rules. So then the question is, who has it, right? So about half the jurisdictions prohibited some kinds of things like this. About half don't. Among those who do, some have narrower views, some have broader views. So in a sense, some people say, essentially, some places say political affiliation. It's kind of like religious affiliation.

>> Jane Bambauer: Yeah.

>> Eugene Volokh: That if you may disapprove of somebody's religion, you may worry that their co-workers disapprove of their religion or that the customers disapprove of their religion. You may think that this person's public expression of their religiosity, maybe they're wearing religious symbols or they're participating in particular religious movements in public that might undermine your business.

Generally speaking, too bad for you as the employer. You've got to tolerate that because of our commitment to kind of religious pluralism. And some states essentially say, well, the rule should be the same for political activity. Others seem to take the opposite. You say, no, no, no. Religion is more like race or sex.

There's something special about that kind of discrimination should be forbidden. But discrimination because you don't agree with people's political views, that's something we leave to kind of the marketplace, essentially.

>> Jane Bambauer: Yeah, you could kind of take the converse of exactly the point you were making about, what counts as political speech here.

That how can an employer be faulted for making decisions or discriminating against political speech when almost everything has some political component to it? And they need to be able to manage their employees in some way.

>> Eugene Volokh: Right.

>> Jane Bambauer: So, I could imagine that some employers would think, okay, this is really bad for me because I myself am trying to either form a bond.

What you might think of as an association between my employees based on some values that have some political dimension to them. Or I'm trying to express to the world, especially my prospective consumers, what our values are. And so having to tolerate employee speech that sort of conflicts with these values is going to mess up with my own, my as an employer's expressive rights. Okay, well, let's put a concrete case in front of you then. So how about when Amy Cooper was fired for this? This is the incident that happened right around the time of the George Floyd murder, when a white woman in Central park called the police on a black man who was angry at her for letting her dog off the leash.

And she called the police and said that he was threatening her. And it became extremely sort of politically volatile. Everyone was discussing this particular example of white privilege. And Amy Cooper's employer and investment banking firm, if I remember right, wound up firing her in part because of the public pressure to do so.

So they would say, we don't want to be associated with this revealed racist. Now, it's a little bit of a harder case cuz what she was doing was not necessarily pure speech. She was calling the police. But let's pretend that what she did was only speech.

>> Eugene Volokh: Right, well, so let's think about this particular under the Colorado statute.

>> Jane Bambauer: Okay.

>> Eugene Volokh: The Colorado statute says you can't be fired for your lawful off-duty activity. Interestingly, New York has a similar statute, but it's limited to recreational activity. And while walking through the park, I think is recreational activity, calling the police.

>> Jane Bambauer: Calling the police, right.

>> Eugene Volokh: Whatever the merits of your call is probably not recreational activity.

>> Jane Bambauer: Yeah, and actually I think she was charged for false-

>> Eugene Volokh: Colorado's lawful off-duty activity. Let's say it was lawful.

>> Jane Bambauer: Let's say it was lawful.

>> Eugene Volokh: Let's say called and said things accurately. But the perception was that she was influenced by supposed racism or whatever else. Under the Colorado statute, it seems pretty likely that she couldn't be fired for that.

Now there is an exception in the statute for essentially people holding particular kinds of job. Maybe if she was the DEI coordinator of the firm, maybe there could be different standards applied to her. But if just the rule is any employee, if you do something off duty that draws bad publicity towards us, you're fired.

That would be illegal under Colorado. So what should we think about that? Well, on one hand, if you think about it, and now let's imagine a hypothetical. This is about actual speech and not just calling or whatever else, and especially political speech. If you think about the rationales that are often given for protecting speech, they apply to protecting speech against private employers almost as much as against government employers.

So if your concern is about democratic self government or the marketplace of ideas, and the worry that the threat of a lawsuit that's enforced in governmental court. So the threat of misdemeanor prosecution or the threat of being fired by your government employer, would undermine democratic self government through the chilling effect, would undermine the marketplace of ideas.

Think we might worry as much with regard to private action. Maybe not when you're comparing against felony prosecution, but I think many people would rather get a ticket for their speech than be fired for their speech. And so it's a much more of a deterrent to them.

>> Jane Bambauer: I agree with you there but then that just begs the question of whether pickering, the case that protects government employees came out the right way.

>> Eugene Volokh: And you can say cuz whenever it's employment, you can always find another job. So maybe, in fact maybe the reason why in some states it's not prohibited is the census, it's not that much of a problem. And if you fired from one place, you can usually find another job.

>> Jane Bambauer: And then maybe another explanation though is that the government in theory, if it's holding on to an employee that's actually costing them money, at least they can tax everyone and spread pain. A private employer, especially if it happens to be small, is now going to be, you know, maybe there are going to be secondary boycotts and it's going to lose its customers.

 

>> Eugene Volokh: So on the one hand is, the rationales for protecting speech, democratic self-government, marketplace of ideas, probably self expression apply also with regard to threat of firing. On the other hand you gotta sympathize with the employer that says, look, we hire you, we pay you $100,000 a year.

That's because we expect to get $120,000 worth of value from you. But if you're causing us $50,000 worth of bad publicity or maybe $500,000 worth of bad publicity, then we're paying you $100,000 and we're getting net 70,000 benefit from you. Why shouldn't we have to run that cost?

This having been said, this is where I think the analogy to religion is potentially useful. So let's say that instead of a complaint about someone supposedly calling the police for racist reasons or making some racist political statement. Let's say somebody says yes, we noticed your employee is a member of this racist church or this anti-gay church.

There are quite a few anti gay religious groups or at the very least religious groups that condemn homosexuality. And we don't want to deal with a company that one of whose employees, maybe even a high level employee is anti-gay or at least supports this and this anti-gay organization.

Under federal law the employer has to say, well, we may disapprove of his positions as well, but we can't fire him based on his religion. We can fire him if we see that he is, I don't know, excluding gay customers or something like that, but simply for membership and being organization that opposes homosexuality, we can't do that.

What's more, because of the religious accommodation provisions of Title VII, it may be the case. In fact there's some case law that suggests that employers, at least, are limited in their ability to fire people based on their religiously motivated speech. So even if the claim is we're objecting this person's speech, albeit religious speech, and not just to his membership in a group.

That kind of religious speech might be protected by Title VII of the Civil Rights act and again, by many state laws. So one question that arises is, if we think that employers have to kind of accept the cost of employing employees who belong to unpopular religions, maybe they should accept the cost of belonging to.

Of employing employees who belong to unpopular political groups as well. Maybe not.

>> Jane Bambauer: Maybe one possible distinction is that, I mean, even thinking through the case where there's a religious employee, one might reasonably ask. Well, is the employee actually doing something on the job that is affecting other employees or customers or not?

And then, maybe in the case of religion, there should be an accommodation. But if the idea is that the discrimination is occurring because of who they are rather than something that they have said or done, then it fits well with anti-discrimination on the basis of race and sex and whatnot.

>> Eugene Volokh: Except religion is complicated, right?

>> Jane Bambauer: I agree religion is complicated.

>> Eugene Volokh: In one level, we think, that person is a Catholic. But the way that people know the person is a Catholic is they may go to Catholic Church, wearing a cross.

>> Jane Bambauer: So that's off the job.

>> Eugene Volokh: Well, even wearing a cross on the job. And of course, a lot of the political speech laws protections are for off the job political speech.

>> Jane Bambauer: Yeah, yeah.

>> Eugene Volokh: Or they may publicly say, yes, I'm a loyal Catholic and I believe what the Pope says. What the Pope says may vary from pope to pope, but in some situations, somebody might very well be quite upset by that.

>> Jane Bambauer: But okay, I still think it's possible to draw a line and actually, I'm-

>> Eugene Volokh: Sure.

>> Jane Bambauer: I'm talking myself into thinking it's actually desirable to draw a line between, if someone says one time or occasionally that they are Catholic and attend Catholic services. And the employer discriminates against them, it's based actual religious beliefs and identity.

Whereas if they are fired because every time they talk to anybody on the job, they are constantly proselytizing, then that's a different matter. So I could maybe-

>> Eugene Volokh: But that suggests not a line between religion and political advocacy. It suggests a line between a lot of political advocacy and very little.

Of course, a lot of people who are fired for their politics or for their political speech are fired because of one incident. And conversely, people who are religious often go to work wearing religious jewelry every day.

>> Jane Bambauer: Every day, right.

>> Eugene Volokh: Now I should say that when it comes to religious speech, especially on the job, possibly even off the job, the protections offered by Title VII are not categorical.

The employer can say, well, it's an undue hardship for us to tolerate something. They can't say that as to discrimination based on their religious beliefs, but they can say that as to discrimination based on religion based political activity. So maybe the line would be between something that creates such a furor that it really causes undue hardship.

Versus something that just causes some annoyance and the employer is worried about what might happen in the future. But again, that's a line that could be drawn and sometimes is drawn with regard to religion. That's not a line between religion and political activity.

>> Jane Bambauer: So we've posted in the show notes two of your articles on about private employers and free speech rights of their employees.

>> Eugene Volokh: And one of them has a map. Everyone loves a map.

>> Jane Bambauer: And one of them has a map. Journal of free speech law but in it you discount more than I would, I think. This idea that if there is a non discrimination requirement, it might be kind of a magnet for litigation.

It might make employers nervous that there will be lawsuits that are actually based on employees who didn't perform their job duties well, but they make use of the fact that there is this anti discrimination law. And I think you say rightly that many of those same arguments can be made and have been made when it comes to say Title VII anti discrimination law.

But actually, I mean, if Title VII is any guide, employers are very reluctant to fire protected employees. Employees who are within the protected classes, they do tend to be a little slower to make firing and demotion decisions. And this would basically sort of compound that problem so that anybody might have a colorable chance of getting their employer to be a little bit nervous about litigation risk, right?

I also worry about employees, I guess. This is one area where if there's a rational, not exactly. If there's not a sort of biased or immoral or whatever reason to a bigoted reason, I guess, to discriminate against the employee. And in fact, all the other employees are made somewhat miserable by this particular employee.

Yeah, I guess I worry a bit about the freedom of the employer to get rid of problem people. So I'm wondering what-

>> Eugene Volokh: Right.

>> Jane Bambauer: What you think about the-

>> Eugene Volokh: Right, well, so I think there are two things going on here, maybe even three. One is that, yeah, employment discrimination laws do indeed chill.

Just like speech restrictions can sometimes chill more than they prohibit. But the employment discrimination laws chill not only forbidden discrimination, but also permissible, possibly quite proper employment actions that the employer might worry might lead to a lawsuit. So, yeah, I think it's a serious concern that the employer might think, somebody is just bad worker in many ways.

But he's recently been tweeting up a storm on these controversial things. Some co-workers have been upset by this, some customers have been upset by this. But now if we fire him, he will sue and say he was fired because of his politics. Again, I do think that we accept that as a risk with regard to other bases for discrimination.

That's of course been a common criticism of anti discrimination law, but it hasn't led to cutting back on anti discrimination law. And then the question is, what do we gain in exchange for this possible burden on sound employment actions? And we'll get to that, that's maybe the third point.

The second possible distinction is you might say, well, race, sex and religion based discrimination, sexual orientation based discrimination, that's just wrong, it's bigoted. Whereas political discrimination is often perfectly fine. Like, yeah, we should hate Nazis and communists and whoever else, all right? And it doesn't mean we should throw them in jail or beat them up.

But at the very least we should be able to refuse to associate with them in a way that we shouldn't with regard to Catholics or Jews or what have you. Of course, with regard to religion that's a very secular perspective, right? I think some people who are quite religious may say, yeah, this person belongs to this religious group that I think worships Satan.

Either because they're satanists or because they're a different religion, but I think, really, they worship the antichrist, let's say. So some employers do take that view. But on top of that, I do think there are a lot of religious belief systems that have not just purely theological components, but moral components that I think people can rightly disapprove of.

So yeah, somebody who let's say, adheres to a religious belief system that counsels in favor of discrimination based on sexual orientation and some such. I could certainly see a reasonable employer saying I think this is an evil belief system. And I dislike the person not because I'm a bigot, somehow just hating people of particular religions.

It's because this person actually is supporting what I think is the very kind of harmful social structure. So, and conversely, with regard to political affiliation, I do think that there is a lot of political discrimination that is kind of a reflection of narrow mindedness. Rather than just, well, yes, this is really something that from a reasonable person's perspective should be seen as beyond the pale.

So then comes the third point which is I think with a lot of these laws there are costs and benefits involved and the cost benefit balance may be different in different situations. So if for example, we think that political discrimination is very rare and likely to target maybe only the people as to whom really kind of most people would say it makes sense that they're Nazis, they're communists, they should be excluded from polite society.

Well then we might say all the various burdens on employers and co workers and such wouldn't be justified by the desire. Excuse me, so I'm sorry, let me start over. So you might say this discrimination is so rare that it doesn't really affect marketplace ideas or democratic self government much.

Most employees are gonna say whatever they wanna say, at least off the job without worry about being fired. If they are fired, they can always find some employer that's not as foolishly narrow minded, let's say. And maybe on top of that we think that it's so rare in part because employers really are pretty reasonable about limiting it just to people whose beliefs are well beyond the pale.

On the other hand, if you think that discrimination is pretty common, or at least in certain sectors, in certain places, you may only have one employer in town people who fit your job category. Or if there are a bunch of employers who share the same ideology or who are subject to public pressure to endorse and enforce a particular ideology.

Then you might say that political discrimination does indeed substantially interfere with search for truth, substantially interfere with democratic self government. We can't have a working democracy if people can't express their views supporting one or another candidate because then they'll lose their job.

>> Jane Bambauer: You might even be helping the employer cuz you give them a reason to not cave to social pressure that they'd in fact rather not cave to, right?

They can say, hey, we're under legal requirements not to discriminate on this person based on that obnoxious thing they said.

>> Eugene Volokh: Right.

>> Jane Bambauer: That thing that you think was obnoxious, right? So, yeah.

>> Eugene Volokh: Right, so it's an interesting question. And maybe the answer is different in different states.

Maybe the answer is pretty much the same throughout the country but maybe changes over time. Maybe the presence of social media and kind of the 15 minute fates that sometimes spring up cause someone to be fired and then make it very difficult for them to get another job either in town or even in some other town.

Maybe that kind of political discrimination is more of a burden on public debate than it used to be. And therefore, prohibiting it justifies the burden on employees. And then of course there are the questions of whether there's some particular employers or employment categories that there should be exceptions for.

For example, ordinary anti-discrimination law doesn't apply the same way to churches. A church is free to discriminate based on religion as to any of its employees. That's an exception to Title VII. And as to its clergy and religious teachers, is free to discriminate based on race, on sex, and any other criterion.

That's why the Catholic church is entitled to have only men as priests. And by the way, various other denominations take the same view. So maybe, for example, if you're talking about an ideological nonprofit, it should be able to discriminate in ways that similarly kind of further its mission.

A few of the laws actually have specific exclusions for something like that.

>> Jane Bambauer: Well, very good. We covered a lot of terrain.

>> Eugene Volokh: There's a lot of terrain to cover.

>> Jane Bambauer: Yeah, anything else you think we need to cover?

>> Eugene Volokh: Well, I think this is a good little starter kit.

Just remember these things are out there. If you're employment lawyer listening to this. Remember, check the rules in the jurisdictions in which you practice. If you're an employer, you better check the rules in the jurisdiction where you actually operate. Although let us tell you none of this is meant as legal advice.

As my colleague Mark Laemmle, Stanford Law School likes to say, if this were legal advice, it would be followed by a bill. So good for you that it's not legal advice. In any event, Jane, great talking to you as always.

>> Jane Bambauer: Yep, talk to you soon.

>> Eugene Volokh: Talk to you soon.

>> Presenter: This podcast is a production of the Hoover Institution, where we generate and promote ideas advancing freedom. For more information about our work, to hear more of our podcasts, or view our video content, please visit hoover.org.