OPINION | Extend the First Amendment to the workplace
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It’s the story of modern life: A website digs up a contribution record of a CEO who gave to an anti-gay marriage referendum a few years ago, and the CEO is forced to resign. A hotdog salesman is photographed nonviolently at a right-wing rally, online sleuths “out” him on social media, and he is fired or “resigns.” A Silicon Valley engineer posts a memo on an internal bulletin board set up for free expression and it’s leaked, and he is fired for promoting gender stereotypes. Even a diversity leader at a West Coast college is sent packing after a few inartful tweets are uncovered by right-wing sites.

In each of these cases, people exercised their First Amendment rights for causes we don’t believe in, and lost their jobs over causes or ideas that they believed in. They each stepped over some clear lines — bans on gay marriage have been declared unconstitutional, the right-wing rally featured neo-Nazis and devolved into deadly violence, the memo contained notions of possibly even genetic differences between men and women, the diversity leader called out “white people.”

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Like it or not, they were each absolutely protected by the First Amendment to the Constitution, and Congress could pass no law in any way penalizing any of them for expressing their views. But so what? They all lost their jobs because, in most places in America, there is a myriad of protections against all forms of discrimination and harassment, but no protection for people being fired for engaging in activities protected by the First Amendment.

 

We polled some of these issues in this month’s Harvard-Harris Poll, and the public overwhelmingly believes that it should be illegal to fire people for expressing their views: 85 percent said people should be protected from being fired for their political views, and 70 percent agreed that the broader protections of the First Amendment should be extended to the workplace.

And while America is divided on so many questions, a substantial majority of every single demographic group we track agreed with these propositions. A stunning 94 percent of those over 65 said people should not lose their job for expressing their views. Even 73 percent of those 18 to 34 agreed with this proposition.

The First Amendment is a unique social compact in which we as a nation agreed to let people we disagree with express their views without punishment, whether those views are on communism, capitalism, fascism or anything else. Acting on these impulses can get you thrown in jail, but just expressing yourself gives you a protected outlet.

But that compact is rendered meaningless if social media can defeat the First Amendment by creating torrents of negative sentiment and the accepted — even demanded — reaction becomes firing people from their jobs for their views. Because it’s not illegal to fire people over their views in most places, it’s simply easier to get rid of the problem. The First Amendment is being rendered meaningless by the same kinds of mobs it was implemented to hold at bay.

In fact, most registered voters today are afraid of expressing themselves at work. Fifty-five percent of Americans said in this month’s poll they were fearful of revealing their views at work, and that majority included 62 percent of women voters and a majority of Democrats, Republicans and Independents. Young people and people in urban areas felt the most comfortable expressing themselves, while atheists, Christians and supporters of third-party candidates were most concerned about expressing their opinions.

The rubber hits the road when really repulsive characters and views get protection. Yet most voters believe that losing your job for the causes you contribute to, the protests you peacefully participate in, or the upside-down theories you champion is just plain wrong. Seventy-nine percent said that they believe it should be illegal to fire a CEO who said he was against gay marriage. While 36 percent of younger voters were in favor of such a firing, even with that group it was only slightly more than a third. Almost 80 percent of people of all races agreed such a firing should be against the law.

What if someone expressed racist views online or at a rally, presenting perhaps one of the toughest cases? Here, 60 percent said it should be illegal to fire them and 40 percent said it should be legal. A majority of young voters said the opposite — fire them — but still, by a wide margin, a majority of voters as a matter of principle agree that even people with completely reprehensible views should not be fired for just expressing those views.

Seventy-one percent said it should be illegal to fire someone for reinforcing gender stereotypes. That included 74 percent of women and a majority of 18 to 34 voters. The excuse a Silicon Valley company gave for firing one of its engineers fell flat with the public because people understand what goes around, comes around. Fire people for what you object to today, and who knows who will be in charge of firings tomorrow.

We gave some additional detail in the case of the engineer who said there were innate differences between men and women that may be responsible for the lack of women engineers — and, even with this detail, 55 percent (including 56 percent of women) said the technology company was wrong to fire him, and most thought it set a bad precedent that would stifle speech further.

And what if people openly support socialist causes, Black Lives Matter or President Trump? In each of these cases, just about 85 percent (plus or minus a few percentage points) were united that no one should lose their job because they expressed views that were to the left or to the right.

Tragically, social-media vigilantes are becoming a feature of everyday life. Activists on the right and the left can “out” anyone whose views they oppose and, if the outcry is loud enough, get them fired — even though overwhelming majorities believe it’s wrong and should be illegal.

Some think shaming and firing will improve our society by weeding out the bad apples and making them pay for their outrageous views. Maybe it would, but without due process behind such decisions, they easily can get out of hand, as we learned with the secret blacklists of the 1950s.

The public would reaffirm and even extend the principles of the First Amendment in new laws that would bar firings of workers — and even executives — to give renewed meaning to our most basic social compact in the age of social media.

Mark Penn and Stephen Ansolabehere conduct the Harvard-Harris Poll. Penn served as President Clinton’s pollster for 6 years. Ansolabehere is a professor of government at Harvard University and runs the Harvard Center for American Political Studies (CAPS). The Harvard-Harris Poll is a collaboration of Harvard CAPS and The Harris Poll.


The views expressed by contributors are their own and are not the views of The Hill.