***Free Speech in the Workplace: An Entrepreneurial View

As an avid reader and author, I am a big supporter of the First Amendment and the right to free speech and freedom of expression. But as a business owner, I have the right to limit the speech and expression of employees while they are on the job.

I have, for example, the right to insist that my employees not use profanity when they are speaking with clients. I also have the right to establish a dress code that employees must abide by while working. It’s quite possible that rules such as these could be viewed by some as inhibiting an individual’s freedom of expression, but they are not unconstitutional.

The First Amendment reads: “Congress shall make no law … abridging the freedom of speech…” The word “speech” has been extended by the courts to include verbal, non-verbal, visual, and symbolic expression. The courts have also recognized various exceptions to free speech, such as obscenity, defamation, breach of the peace, incitement to crime, “fighting words,” and sedition.

This is one of the things that makes the United States of America a great country. But the key here is that the First Amendment prohibits Congress from making laws that would violate a person’s right to free speech and expression; employers have the right to set policies regarding on-the-job conduct, and that includes speech and other forms of expression.

When workers are away from the workplace, not representing the company, they are free to say and do as they like (unless such conduct would violate agreed-on terms of an employment contract or would be illegal). But when they’re on company time, they should abide by company rules. If they don’t like the rules, they’re free to seek employment elsewhere.

To me, that seems simple and reasonable. But some employees won’t see it that way, so—regardless of the size of your operation—you need to protect yourself by setting clear policies, having them reviewed by an employment attorney to be sure they’re legal, communicating them to employees from day one, and applying them consistently without exception.