Threats to Workplace Speech in a Time of Free Speech Crisis

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Helen Norton 

Because of work’s centrality to the lives of so many, workplaces operate as sites for individual and collective expression and for democratic engagement. While at work, workers and employers alike engage in, and listen to, speech on matters of both public and private concern. And sometimes the general public is also among the audiences for workplace speech. 

In short, speech at work is often of great First Amendment value. We should thus worry about efforts to restrict the free flow of ideas, information, and opinion in the workplace. Yet governments—and private employers too—frequently silence and distort on-the-job speech in a variety of ways and for a variety of reasons. Here I sketch some contemporary threats to free speech at work.

The Government’s Threats Against Speech in Private-Sector Workplaces 

First Amendment protections should be at their strongest when the government restricts speech at nongovernmental workplaces based on that expression’s content or viewpoint. The government restricts speech in violation of the First Amendment not only when it engages in an exercise of hard law—for example, when it enacts a statute prohibiting certain workplace speech based on its content or viewpoint—but also through its speech that threatens to take adverse action against such expression. 

In earlier work, I’ve discussed why the government’s speech is generally exempt from Free Speech Clause scrutiny: the government must speak in order to govern. And the government’s speech—even when it makes us crazy—can offer great value in informing the public’s decisions about whether and when to hold that government politically accountable for its priorities. At the same time, however, I’ve emphasized a limited but important universe of situations when the government’s speech can, and should, be understood to violate the Constitution. Here I focus on the Free Speech Clause, but sometimes (depending on the facts) the government’s speech can violate the Due Process Clause, Equal Protection Clause, Establishment Clause, or other constitutional provisions. 

More specifically, the government’s speech can violate the Constitution when it changes its targets’ expression in ways that would violate the Free Speech Clause if the government accomplished those same changes through its hard law action. This includes the government’s threats of adverse action that have the intent or the effect of silencing its targets’ speech based on content or viewpoint. 

Along similar lines, Genevieve Lakier’s new article explains how the Supreme Court’s decision last year in National Rife Association of America v. Vullo reaffirms and clarifies a categorical rule that bars the government from threatening harm or promising benefits based on its target’s expressive conformity with the government’s ideological preferences. Under Vullo, the relevant inquiry is whether the government engaged in “conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action” and that the government did so “in order to punish or suppress the plaintiff’s speech.” As Lakier explains, what matters for triggering this categorical bar is the government’s intent to coerce its targets’ expression through its speech reasonably understood as a threat, rather than the success of the government’s effort or the magnitude of the threatened harm or benefit. 

These principles are key when thinking about the government’s threats to punish speech in the workplace, as well as the government’s threats to deny access to public employment based on applicants’ or employees’ speech and association. 

Consider first the Trump Administration’s Jan 21, 2025 Executive Order on matters related to DEI (“Diversity Equity, and Inclusion”). Here I focus on what some call the Order’s “enforcement provision,” which requires the Attorney General to develop a plan to “deter DEI programs or principles (whether specifically denominated ‘DEI’ or otherwise) that constitute illegal discrimination or preferences” and to identify “potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.” 

The Executive Order itself offers no explanation of what the federal government now considers to be “illegal” DEI—even though most employment practices undertaken under this capacious term (which is not a legal term of art but instead describes a wide range of values, perspectives, policies, and practices) are entirely legal, like expanding the talent pools from which applicants are recruited and ensuring that selection criteria screen for successful job performance. Nor, in litigation challenging the Order, have the government’s lawyers answered judges’ questions about what the government now understands as “illegal” DEI. 

To be sure, some of the Administration’s communications describing the Order’s scope focus on specific employment actions that have long violated employment discrimination law—like making ultimate employment decisions based on protected class status. But many other Administration communications are not so cabined, like the White House fact sheet on the Order that described “DEI’s foundational rhetoric and ideas” as “foster[ing] intergroup hostility and authoritarianism.” And President Trump’s post stating “Paul Weiss [now] affirms its commitment to merit-based hiring, promotion, and retention, and will not adopt, use, or pursue any DEI policies.” 

The considerable uncertainties created by the Administration’s failure to specify the Order’s reach, coupled with its threat of legal action against employers who violate the Order, chill valuable workplace speech based on content and viewpoint. Examples include speech about how to address longstanding structural inequalities that deny equal opportunity based on protected class status and regardless of merit, and speech that communicates support for achieving diversity, equity, and inclusion on the job. 

(Note that protected workplace speech engaging these ideas is readily distinguishable from the limited but important universe of cases involving targeted workplace harassment that alters the terms and conditions of employment based on protected class status. Courts and commentators have long recognized that quid pro quo harassment—in which an employer threatens on-the-job punishment or offers on-the-job reward based on a worker’s response to unwelcome sexual advances—is unprotected by the First Amendment. Think too of workers forced to endure repeated racial or sexual epithets that change the terms and conditions of their employment just as effectively and miserably as being dispatched, based on race or sex, to an unheated basement office in the dead of winter. For similar reasons, the Court has made clear that an employer’s statement that “only white applicants need apply” is unprotected by the First Amendment because it declares certain job opportunities off limits to protected class members.) 

Turn next to a different employment-related threat to free speech: threats by the interim U.S. Attorney for the District of Columbia to deny jobs and internships to anyone “who is a student or affiliated with a law school or university that continues to teach and utilize DEI.” 

            Governmental threats to exclude from public employment those exposed to certain ideas—or those who have associated with those who teach or agree with those ideas—exploit the government’s hiring power to enforce orthodoxies of speech outside of the public-sector workplace. As Eugene Volokh has explained, these threats run afoul of longstanding First Amendment constraints against the government’s viewpoint- and content-based speech restrictions. And here too, these First Amendment constraints apply to the government’s threats and not just the government’s hard law action. 

            Governmental Employers’ Regulation of Their Workers’ Speech   

The government has considerably more First Amendment latitude to control its employees’ speech in its role as employer than it does to regulate private-sector workplace speech in its role as sovereign. More specifically, the Court has held that public employees’ speech pursuant to their official duties is entirely unprotected by the First Amendment. Public employees’ speech on matters of public concern that is not pursuant to their official duties remains protected by the First Amendment so long as that expression’s value outweighs the government’s operational interests. 

But courts’ deference to the government’s efforts to control public employees’ speech too often frustrates representative government by enabling the government to deny the public of whistleblowing and other valuable job-related speech about governmental operations. Critics of the Court’s public employee speech doctrine thus charge that it disregards this expression’s First Amendment value in informing voters’ ability to hold the government politically accountable for its performance. 

Working within the limits of this doctrine requires an appropriately narrow understanding of when public employees’ job-related speech actually occurs  pursuant to their official duties and thus unprotected by the First Amendment. For example, depending on a public employee’s job, their speech about DEI-related matters and other matters of public concern may not be among their official job duties—in which case, that expression remains protected by the First Amendment, with its regulation subject to Pickering balancing. 

Turning from constitutional to statutory free speech guarantees, legislatures can also safeguard the public’s interest in this expression by enacting whistleblower and related protections for government workers’ speech on matters of public concern. This, of course, requires legislatures’ exercise of political will. 

Private-Sector Employers’ Restrictions of Workplace Speech 

            Turn now to powerful private parties’ threats that silence workplace speech. If the government uses threats to coerce private-sector employers into restricting their workers’ speech in service of the government’s preferred expressive orthodoxies, then the Vullo rule, discussed above, should apply. 

But private-sector employers may seek to control workers’ expression—without any government involvement—to enforce their own ideological commitments, to curry favor with the government, or for other reasons. To be sure, private-sector employers are not constrained by the First Amendment. Yet legislatures have the constitutional power to protect workers’ speech from employers’ reprisal.  Examples include not only statutory whistleblower protections, but also the antiretaliation protections provided by Title VII and related laws that attend to the asymmetries of power and information in the workplace that often work to silence employees’ speech. Along these lines, the Supreme Court has interpreted the National Labor Relations Act to protect workers from their employers’ threats to punish workers’ support for unions. 

Note too that workplace free speech issues can be triggered not only when employers restrict workers’ expression based on content or viewpoint, but also when they compel their workers to listen to certain viewpoints. Ash Bhagwat, for instance, maintains that speakers in most cases have no First Amendment right to force their views on unwilling listeners—and that the First Amendment thus permits the government to intervene to protect those unwilling listeners. Along these lines, some states have enacted laws protecting workers from captive audience meetings where employers exercise their power to insist that their employees listen to antiunion views, and sometimes religious and political speech more generally. Here too, these tools for addressing expressive inequalities in the workplace require legislatures’ exercise of political will. 

Conclusion 

In short, First Amendment tools are available to courts for addressing the government’s threats intended to chill and silence expression in the workplace and the government’s threats to deny access to the government workplace based on expression outside of that workplace. Legislatures and enforcement agencies can also protect workplace speech by enacting and enforcing statutory free speech guarantees. What remains to be seen, however, is whether and how courts and other actors will use these tools to protect the free flow of workplace expression during times of free speech crisis. 

Helen Norton is University Distinguished Professor and Rothgerber Chair in Constitutional Law, University of Colorado School of Law. You can reach her by email at helen.norton@colorado.edu.