Free speech on the job: where government isn’t the boss

Thursday, June 30, 2011

There’s not a lot of free speech in most workplaces.

The First Amendment provides that government cannot limit our speech, but we don’t enjoy the same liberty where we work.

If you doubt that, you may want to try to petition your boss for a redress of grievances and then organize a march to his office to make your point. Chances are your free speech will end up giving you more free time than you ever intended.

But what happens when legislators — not bosses — try to limit what you say while you’re on the job? For doctors in several states and teachers in Tennessee, that’s not an abstract question. In recent months, unprecedented legislation has been introduced that would curb the conversation of professionals:

  • The Florida Legislature passed a law prohibiting doctors from asking patients whether they own guns. Pediatricians frequently ask about guns and other potential safety hazards to kids. Similar legislation has been introduced in North Carolina and Alabama.
  • A bill was introduced in the Tennessee Senate that would have barred teachers from talking about homosexuality in middle or elementary school. A version of the “Don’t Say Gay” bill was approved by the Senate after being amended to bar lesson plans or teaching material concerning homosexuality.

This is new turf. Can state lawmakers tell professionals that some questions are off limits? More specifically, can a state ban an inquiry such as “Do you have guns in your home? Are they safely locked away from the reach of children?”

Florida and guns

Supporters of the Florida bill said that patients are made to feel uncomfortable when asked about guns at home, and that it chills their Second Amendment rights.

“We take our children to pediatricians for medical care, not moral judgment, not privacy intrusions,” said National Rifle Association lobbyist Marion Hammer.

Maybe I’m going to the wrong doctors. Every general practitioner I’ve had has asked me personal questions about what I eat, how much I exercise and whether I drink, a question that chills my 21st Amendment rights.

This isn’t a policy debate about whether doctors should or shouldn’t talk to patients about gun use. It’s a constitutional question of whether lawmakers can override the First Amendment so that patients won’t feel uncomfortable being asked about the Second.

The answer will come in the courts. Earlier this month, three doctors’ groups filed suit in federal court challenging the law.

“Patients have a right to trust that doctors are providing their honest and best advice about matters of health and safety,” said the doctors’ attorney, Doug Hallward-Driemeier. “The Florida Legislature cannot require that doctors first put that advice through a government-approved filter.”

In Tennessee, the law might be a closer constitutional call if challenged. Courts will typically show deference to state legislatures in school curriculum matters, and the bill’s sponsor did back away from direct limits on what a teacher can say, focusing instead on the teaching materials they may use.

Even so, giving state lawmakers the right to forbid topics in classrooms would seem to invite a laundry list of unneeded restrictions.

In Tennessee, there are already limits on sex education before high school, and the Tennessee Department of Education says the topic of homosexuality couldn’t be taught unless it were part of an approved curriculum — and it isn’t.

In other words, these infringements on free speech are not tackling pressing problems. They certainly have political appeal in some quarters, but they attempt to micromanage the work of professionals who work daily to protect the health and education of our children.

Curbs that make sense

Limits on the speech of professionals do exist, but they’re almost always designed to maintain the high ethical standards of the profession and prevent the real threat of corruption or malfeasance. For example, lawyers are barred from bragging about the kind of results they can achieve in a courtroom, and real estate agents can’t try to sell property by suggesting that a change in the racial makeup of a neighborhood is taking place. These are very narrow limits designed to protect the public from real harm.

When it comes to free expression on the job, the person who signs your paycheck makes the rules. But it’s important to remember that the people whose paychecks we figuratively sign — the men and women on the public payroll — have no right to control what Americans say, write or think on the jobs or in their homes.

This article was first published in USA Today on June 29.

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