Bill of Rights

Sorry Roseanne, Freedom of Expression Doesn’t Apply to the Workplace

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We once had an employee who posted some awful things about his manager on Facebook. I’m not going to repeat what he posted, but let’s just say it was offensive, nasty and simply untrue.

When I met with Senior Management to discuss how to handle the issue, one of the Senior Managers warned that we needed to be careful not to violate an employee’s freedom of speech.

He has the right to say want he wants, I countered. But we also have the right to kick him out on his ass for doing so.

Roseanne Barr’s sitcom was recently cancelled because of a racist Tweet. Her defenders state that ABC, and its parent company, Disney, are treading on her First Amendment right to freedom of expression.

Sorry, but the Bill of Rights stops at the office door, or in this case, the TV sound stage. The first ten amendments to the US Constitution guarantee protection from an overreaching government, not from corporations. Corporations were almost non-existent at our nation’s founding, and it’s doubtful the Constitution’s authors could fathom how much power they would wield 200 plus years later. Even when considering how it protects us from our government, there are limits. It’s appropriately illegal to distribute child pornography or park an M-1 Abrams tank in your driveway, regardless of how the Constitution is worded.

When someone goes to work for a corporation, whether through contract or policy, they agree to give to behave in a specified way in exchange for employment. As long it is done within the law and for justifiable business reasons, this can include items specified in the Bill of Rights. Within the scope of their authority, corporations can prohibit gun possession, search desks, monitor communications and yes, limit speech.

Corporations can’t limit all speech. They generally have to show that it creates an undue hardship. Under the National Labor Relations Board rules, they also can’t keep employees from discussing workplace issues such as pay, benefits and safety. They can, however, prohibit employees from saying things that would disparage or in some other way harm the organization.

So how did Rosanne run afoul of these rules? She was speaking as a private citizen, outside the workplace. It had nothing to do with her television show. Can’t she say what she wants?

Yes, she can, but Disney can also do what it wants. Rosanne Barr is not just some assistant key-grip or associate producer’s gofer. She is the star, the face, of the show. Like it or not, she represents it to the viewing public. She is essentially always working.

In my limited way, I am in a similar situation. I am a leader in my organization. What I say and how I act, reflects on the organization. It’s part of what I get paid for. So while a teller or a service representative could post certain messages on social media, I have to be more careful, even if I am doing so as an individual.

Disney is extremely image conscious. It wants to be seen as wholesome, family friendly and inclusive. Roseanne’s Tweet ran counter to this image. This could antagonize would-be customers and turn off potential advertisers. What looks on the surface like a moral judgment is in fact, a business one. Disney is protecting its all-important brand.

Some of Roseanne’s supporters have said that if her show is being cancelled for what she said, so should Bill Maher’s Real Time with Bill Maher. After all, he has said some mean and nasty things as well. There’s a difference, however. Bill Maher’s show is on HBO. HBO has a reputation for being edgy. Whether or not you agree with him, he is doing what HBO pays him to do, what viewers expect to see when they tune in. Roseanne, on the on the other hand, was being paid to put on a family friendly sit-com on a major network, which by their very nature, shy away from edginess in order to appeal to the greatest number of people.

(It should be noted, for those with short memories (or short lives) that Bill Maher had his ABC show cancelled back in 2001 for suggesting it took guts for the 9/11 terrorists to fly passenger jets into buildings.)

I assume Roseanne had a contract with some sort of morality clause. Even if she didn’t, Disney has the right to do what it did.

As for our employee, he voluntarily took down the post and apologized. “I knew it was a mistake even as I was typing,” he told me. “I wish I hadn’t done it.”

I have no doubt that Roseanne wishes the same.

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