I’ve written before on the suspended Delta flight attendant, Ellen Simonetti, who was suspended for her web log, and the larger issue of whether one’s employer is prohibited from regulating public behavior (see here). Ms. Simonetti has since been terminated. My sympathy extends to Simonetti and others who find themselves fired (often with little, if any, warning) for off-the-clock activities.
Unfortunately, Ms. Simonetti, has allowed her disappointment and anger to cloud her judgment; she has joined with forty-four other bloggers in proposing an International Bloggers’ Bill of Rights. Like many others, Simonetti misunderstands the nature of the employment relationship. While the first amendment clearly prohibits the government from making laws abridging the freedom of speech, it affords no such protection in the private sphere. A private employee has no constitutional right to free speech in the (private) workplace - and for good reason. Because employers must decide who to hire and fire, what skill sets to utilize, what strategies to pursue, and what investments to make, they must have the right to terminate employment for behavior they deem offensive, harmful, embarrassing, or controversial – public behavior which may adversely affect those investments and strategies. In other words, it’s their company, they can do what they want*. Similarly, at the individual level, employees decide the line of work to pursue, the cultures in which they thrive, the geographic locations they prefer, the pay scales that most appropriately award their experience and skill, and the supervisors that best develop their talents. Employees retain the same degree of freedom as the employer: they have the right to terminate the relationship at any time.
By calling for a Bill of Rights, one which guarantees the ‘freedom to blog’, Ms Simonetti implies that citizens currently lack the right to host a web log or website. They do not; the Constitution affords protection for any number of similar activities. No government institution is threatening to pull the plug. No government watchdog agency is demanding that she appear in court. There is no threat of prison sentence or a government imposed fine. So what can ‘Freedom To Blog’ mean, unless she means the ‘freedom to blog’ within the private sphere without fear of consequence or recrimination. But constitutional protections in the area of speech do not necessarily extend to the private sphere. And to demand the freedom to write, behave, or speak in whatever manner one pleases while simultaneously demanding that others (employers) be denied that right is to miss the mark completely: it is to ask that one’s speech and/or actions be given impunity while denying that same protection to others.
Ms Simonetti contends that ‘NO ONE shall be fired because of his/her blog’. But to demand that NO ONE be fired for public activities is to mistakenly assume that one’s protections from government extend into the private sphere – it is to essentially demand a protection scheme for one’s own behavior, and it is to deny employers (groups of individuals) the right to freely pursue and protect their own interests. In a sense, Ms Simonetti is privileging her speech/actions above her employers’. She wishes to insulate her actions, while denying her former employer’s most basic rights: the right to pursue its interests. Employers who find themselves unable to eliminate damaging or controversial employees won’t be in business for long; and what constitutes damaging or controversial behavior is up to each employer to decide – in the same way that each individual decides which risks to take and which to forego.
Ms Simonetti, however, does get one thing right: she suggests that companies that fire bloggers will find themselves blacklisted by the world wide blogger community. Millions of bloggers the world over are free to exercise their freedom of choice in any way they see fit. If enough people feel strongly enough that Delta practices unfair employment policies, then people can join together and refuse to fly Delta. If enough people feel strongly enough that Apple has Draconian restrictions on their employee’s freedom, they can simply boycott Apple products. Otherwise, bloggers just have to take their lumps. Tough luck. Employees need to choose their employers carefully. After all, employers are simply groups of individuals: there are the good, the bad the fair, the unfair, the open-minded, the indifferent, the progressive and just about any other quality you care to name. Eventually, gauging a company’s openness to public activities outside of work may become as important a factor in choosing work as inquiring about their health plan, vacation time, or their openness to a family-friendly workplace. Hopefully, Ms Simonetti’s Bill of Rights is intended tongue-in-cheek, or simply as a cathartic exercise for an angry mind. Otherwise, it is an attempt to warp the inherent free nature of the employment relationship; and demanding the freedom to say or do whatever one pleases without accepting the consequences is too ridiculous an item to even consider – unless Ms. Simonetti intends to deny the same freedom to the employer that she possessed all along.
(*’they can do what they want’ is to be narrowly construed within the framework of current employment law practices. It is not meant to argue that employers have carte blanche to do as they will to employees.)
This is not only the best argument I've heard against the Bloggers' Bill of Rights, it also eloquently captures my own thoughts on employer-employee relations in general.
Posted by: James Tauber | January 11, 2005 at 01:39 PM