The New Constitution: Amendment II – freedom of speech and the press, assembly, and redress of grievances
No corporate, commercial or other private or publicly held entity shall abridge an individual’s freedom of speech or the rights of a free and unfettered press; the right of the people peaceably to assemble, and to petition for a redress of grievances will not be infringed.
In modern America, nothing poses a greater threat to individual liberties than the private sector. Corporations and other business entities routinely exert pressure on free expression, especially that of their employees.
If we assume that liberty depends critically on free expression in all its manifestations, including the right of a free press, then it logically follows that these rights must be defended against all repressive forces, not simply governmental ones.
Comment: Employer Disparagement vs. Non-Employment Related Speech
During the review phase of this process, multiple people asked about potential conflicts between this amendment and the rights of a company to conduct business, and in doing so they raised a valid point. Certainly we cannot act to safeguard any and all speech activities where businesses are concerned, can we?
First, it will become clear later in the New Constitution series that individuals have rights, but collective entities such as corporations do not. As such, in any case opposing an individual’s rights vs. the interests of a business, we will accord presumption to the individual.
That said, this amendment is intended to curtail corporate encroachment upon an individual’s non-employment related expression. An example illustrates the point.
Suppose person A is employed by XYZ Corporation, a large technology company that provides software and a variety of online services including a search engine.
Instance 1: Employee A is quoted in a magazine article saying that XYZ’s search engine is deficient, and that its competitor’s offering is far superior.
Instance 2: Employee A, while engaging in civic activity independent of work, is quoted in a magazine as saying that the mayor of the city in which XYZ is located (a close personal friend of XYZ’s CEO and a supporter of the company’s mission) is incompetent.
In instance 1, it is not unreasonable to at least infer a contract between XYZ and A that would regard disparagement of the company or product as malfeasance. In this view, it wouldn’t seem to be objectionable if XYZ terminated A for cause. In instance 2, however, A is not at work and isn’t engaged in any work-related activity of any sort. He/she is speaking either on his/her own behalf or on behalf of a civic third-party. In this case, the rights of the individual acting as a public citizen should not be abridged.
Our society has, in recent years, evolved an ever-more-expansive concept of corporate brand. Businesses take their public image quite seriously, as they should, and any action on the part of a company’s representatives or employees that damages the company’s reputation can be treated as malfeasance. Embarrassing the company is, in short, regarded as a firing offense.
This view of brand serves no compelling public interest, and in fact mitigates against the greater social benefit attending free expression. If freedom of speech is central to the function of the Republic, then anything that encroaches upon it works against the common good.
I am open to debate on the “disparagement” question. I am not convinced that employers aren’t entitled to a certain measure of loyalty from those who work for them. (This doesn’t include cases of legitimate whistleblowing, of course.) As a result, I may be convinced that disparagement isn’t deserving of constitutional protection. I may also be convinced that it is, and I invite comment on this point.