Free speech is not always just about the First Amendment

Tuesday, January 11, 2000

Atlanta Braves’ pitcher John Rocker is catching a lot of flak from minority groups, the commissioner of baseball, his boss, his teammates, the mayor of New York, and just about everyone else with a conscience or a microphone. There’s even a special Web site devoted to flaming Rocker.

Rocker got himself into this fix by loosing a stream of hateful invective against poor people, gays, African-Americans, Asian-Americans, “foreigners” in general and — for good measure — Mets fans. His comments, chronicled in the Dec. 27 issue of Sports Illustrated, aren’t the kind that one could overlook as a slip of the tongue or just being politically incorrect.

Public reaction was swift and intense, but the 25-year-old player’s problems didn’t end with that. Baseball Commissioner Bud Selig ordered him to undergo psychological testing, and he faces possible disciplinary action or firing depending on the results of the mental exams.

To make matters worse, Rocker can’t look to the First Amendment for protection if the baseball bosses decide to punish him for airing his anger and attitude in a national forum. There are some places even the First Amendment doesn’t go, and this appears to be one of them.

The simple explanation is that this is a matter between an employer and employee and does not involve government action — at least not direct government action.

We do have laws on the books that require employers to make sure that their workers do not have to endure discriminatory, harassing or hateful speech in the workplace. As a society, we have decided that such laws are necessary because workers are unable to escape or effectively respond to bigotry and bias from the boss, supervisors, or even fellow workers. Such laws were directed primarily at speech and activities that occurred in the workplace during work hours.

But courts also have allowed both public and private employers to extend their control of employees’ speech beyond the workplace. As a result, employers can discipline or fire employees for words and actions on their own time, including engaging in controversial speech, demonstrations, dancing at a topless bar or posing nude for a magazine or Web page, to name a few examples.

Just one measure of the First Amendment’s infirmity in this area is the fact that Kansas trash hauler Keen Umber had to go all the way to the Supreme Court to secure his right to criticize the Waubaunsee County Commissioners — and he wasn’t even an “employee” as such, but a contractor.

John Rocker’s situation would not be of special concern if it were an anomaly — if it were just a baseball star with a big mouth and a bigoted attitude getting his just desserts. The problem is that Americans from all walks of life, engaged in a variety of expressive activities, have been and are subject to punishment from their employers.

That problem is compounded by the fact that it is difficult to say how much farther we will expand employers’ power to limit speech. There seems to be no real barrier to extending and expanding this principle to other speakers, to other words and subjects and to other situations that for the moment seem safe.

Those who care about freedom of speech and the vigor of public discourse should not concede this ground without engaging the critical issues raised. The current muddle creates an environment filled with inconsistencies and arbitrariness.

Why is it all right, for example, for an employer to discipline or fire a well-known athlete for spewing hateful speech, but not an ordinary citizen who flies a Confederate flag on his front porch?

Why is it all right for an actor playing a character to engage in offensive speech in a movie or television show, whereas the actor would be subject to discipline (theoretically, at least) by his employer if he should say the same words off the set?

Why is John Rocker subject to punishment, but not a rap musician who uses the same words or worse? Or a comedian on an HBO special? Or a Holocaust denier on a Web page? Or political or religious leaders who say the same things using more-polite words?

For that matter, how is it that Sports Illustrated writer Jeff Pearlman can pass on Rocker’s words to a national audience and suffer no consequences?

Are we moving toward a time when the only Americans who enjoy full freedom of speech are the unemployed or self-employed?

All of us should experience some unease that the government, in effect, can delegate censorship powers to private contractors. If these matters aren’t about the First Amendment, then surely they are what the First Amendment is about. As a nation and a society we have invested a lot in the idea that the answer to bad speech is good speech, not firing, not psychological testing, not sensitivity training.

National surveys tell us that an alarming number of Americans regularly don’t speak out about matters important to them because they fear punishment by their employers. That number is bound to grow as more Americans learn that speaking your mind can put your job on the line.

Certainly, John Rocker invited and deserved the scorn he received. Public protest of his words is in the best tradition of our First Amendment. But the more we extend the ability of employers to punish the speech of employees outside the workplace, the more that tradition withers.

We must not let the fact that John Rocker engaged in speech that we abhor mask the valid free-speech issues his predicament raises. Nor should we allow the assertion that this is not a First Amendment issue mask the fact that the silencing of disquieting speech, whether by public or private entities, violates the spirit of the First Amendment if not the letter.

Paul McMasters can be contacted at