Chik-fil-A and Free Speech

Anyone who thinks that boycotting Chik-fil-A because of their anti-gay sentiments is a violation of their free speech rights needs to go back to high school civics class.

If you were walking down a public sidewalk on a busy street and you saw someone holding a sign that said “no rights for gays” or “donate to prevent gay marriage”, would you donate money to their cause? What if the sign said “donate to repeal all civil rights laws and put blacks back into their 1950 status”? Or “women belong in the kitchen and not in the boardroom”? Maybe the sign says “support the Nazi party”.

Every one of these people have a right to be on a public sidewalk demonstrating for their cause, barring rules about permits and other administrative issues that help maintain order.

That’s because the First Amendment of the US Constitution states that government cannot make any laws that abridge the freedom of speech. So people get to stand out in public places and demonstrate and chant about all kinds of things that many reasonable people might find offensive. Remember the Westboro Baptist Church and their loud anti-gay demonstrations at military funerals? Perfectly legal, according to an 8-1 decision of the US Supreme Court.

I have been an ardent supporter of these free speech rights my entire life, and there is a reason that it is one of the very first rights listed the Constitution. It is one of the cornerstones of our republic form of government.  I supported the neo-Nazis right to protest in Skokie, Illinois in the mid-70s.

But the right of free speech means the government can’t interfere with that right. As a private citizen, I am free to do whatever I legally want in order to voice my opposition to a position. Because I have free speech rights, too. So if I saw one of those people on a sidewalk with one of those signs – I would pass them by. I certainly wouldn’t give them any money.

People who claim they are supporting Chik-fil-A because its right to free speech is more important than gay rights are seriously confused or incredibly ignorant. Choosing not to support Chik-fil-A’s position on gay marriage or any other gay rights issue does not in any way impede their right to free speech – which is only about government intervention. No government has stopped Chik-fil-A and its executive from saying exactly what it wants, and contributing to causes as it wants. They have free speech, and have exercised it appropriately.

But as a private citizen, I am free to disagree with their position in any legal way that I want. Remember the Westboro Baptist protests? People finally became outraged enough to organize their own counter-demonstration, blocking the protester’s access to the funeral. That is the American way.

Consumer boycotts against companies whose practices or philosophies are disagreeable have been around forever. In the late 60’s, I was an ardent support of the grape boycott supporting the United Farm Workers.  In the late 70’s and early 80’s I refused to buy from companies that invested in South Africa, because of their system of apartheid. No one ever claimed that these were free speech issues. They were about principles, and which principles any individual or company was going to uphold. I chose to follow my personal principles on these issues, and protest in the most civil and peaceful way I know – by withholding my money from their pockets.

If you were to give money to one of those people on the sidewalk holding a sign, what does that say about your position or principles?

No one says you can’t give money to Chik-fil-A. But if you do,  it’s your speech supporting their anti-gay agenda. It’s not one bit different than throwing money in a bucket to someone standing out on a street holding a sign. You’re not defending the First Amendment, because it’s not in jeopardy in this instance. If it was, you can bet Chik-fil-A already would have been in court. But you are telling everyone around you what principles you choose to support.  Because people are their principles.*

Pretty plain and incredibly simple.


*The full quote, from the movie The Way We Were, is

Hubbell Gardner: People are more important than their principles.

Katie Morosky Gardner: People ARE their principles





Blog Comments – When To Delete?

Four months ago I published a post about HRevolution, that most excellent of all HR conference-type events. In case you don’t want to click here to read the post, I will just tell you that in that post I mentioned Sue Marks, CEO of Pinstripe Talent, because her company was nice enough to furnish the attendees with Meet-Meme cards. I didn’t endorse her company or say much of anything except thank you.

So I was a little surprised to receive notification of the following comment just a couple of weeks ago:

 Now, I presume you will agree with me that the comment is not offensive, vulgar, discriminatory,  or any other negative type that we all agree is fair game for deletion. It contains spelling and grammatical errors, but I think we can also agree that poor writing skill is a problem up and down the social web, and certainly not a reason to hit the delete button.

The issue with this comment is that it is really not about the substantive content of the post, but a politely worded political commentary. Not exactly spam, but . . . close. A troll? Not quite.

Since that comment was posted, I have been thinking a lot about the spirit of free speech and whether, in that spirit, I should allow this comment to stay. I was reminded of a case I studied in law school, which discussed whether private property owners of large open-to-the-public shopping malls should be required to allow picketers and other public speech demonstrations. The argument was that these places have supplanted public parks and town squares as gathering places, and that free speech principles should be allowed to follow the public.

In law school I argued vehemently against such a law, believing that business owners can best determine whether allowing demonstrators on their property was in their best financial interest. Now, with this blog comment, I’m not so sure.  Even though I own my blog and can delete any comment I want to – should I? If the social web is the “democratization of communication”, as pundits claim, do I have a social responsibility to honor that democracy by allowing political comments on an HR blog?

What about you? Would you delete this comment if it was your blog? Does it matter if you agree with the comment? I’d love you to tell me your thoughts.

Facebook and the NLRB – Don’t Believe Everything (Or Maybe Anything) In the Blogs

You know about this case, right?

I’m talking about the case of the Connecticut ambulance company that fired an employee after she posted negative comments about her boss. The National Labor Relations Board (NLRB) filed an action against the company maintaining that the firing was illegal; the ambulance company and the NLRB reached a settlement last week. There is so much misinformation and inaccuracy floating around the Web right now about this case that it’s ridiculous to even list or link to them all. If you insist, here, and here are a couple of offenders. Here’s why they are wrong:

1. FREE SPEECH – This case isn’t about free speech at all. Not one single, solitary sliver. The firing didn’t impact the employee’s free speech rights, and the settlement doesn’t validate any free speech rights. The case is about “protected concerted activity“, which all employees are allowed to engage in pursuant to the National Labor Relations Act (NLRA).  The law states that employees have the right to discuss wages, hours, working conditions, etc. without fear of retaliation or punishment. That is NOT constitutional free speech, but a worker right granted by statute. If these writers don’t understand the difference between the Constitution and a statute, they need to go back to high school civics.

2. UNION OR NON-UNION – The NLRA applies to all employers and employees, with some specific exceptions that are not relevant here. When articles say that non-union employers are not impacted, they are dead wrong, because ALL employees have the right to engage in protected concerted activity. It is the conversation about wages, hours, and working conditions that allow employees to make reasoned choices about unionization, which is why it is allowed by statute. At least that is the theory.

3. AT-WILL EMPLOYMENT – Employers in an “at-will” jurisdiction do not have to have a reason to terminate an employee.  BUT – they cannot terminate an employee for an illegal reason, like sexual or religious discrimination, or whistle-blowing. Commentators who say there is no impact in an at-will jurisdiction don’t understand the concept at all, and are dead wrong. Even at-will employers cannot legally fire someone for talking about their working conditions.

The issue in this case is simple: Was the employee Facebook post, and her comments in response to others, a conversation about working conditions at her place of employment? If so, it is protected concerted activity that the employer may not legally prevent or punish.

Since Facebook posts are pretty clearly an attempt to start a conversation or to encourage someone to listen to you, I don’t see why this is even questionable, unless the employee was writing about her dog or cat and not about working conditions.  The case is really no different than if the woman was standing around the coffee shop talking with her co-workers about her boss.  Facebook is just digital conversation around a virtual water cooler. This is what the NLRB wants employers to recognize.

Some bloggers want to turn it into more than this, or into something else altogether.  Don’t believe them.

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