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Front Page - Friday, August 25, 2017

‘Freedom of speech’ won’t protect your job

Why employers get a pass on First Amendment ‘right’

America’s alt-right might feel at ease carrying torches and shouting Nazi slogans in today’s political climate, but they can’t expect to wrap themselves in the First Amendment and come out unscathed. Their jobs could be at risk.

A social media campaign to identify white supremacists at the deadly Unite the Right rally in Charlottesville, Virginia, led to the firing of several people nationwide whose employers wanted no connection to a national tragedy and views espoused by neo-Nazis and Ku Klux Klansmen.

Chattanooga restaurant Mojo Burrito fired employee Terrance Hightower after a co-worker called him a Nazi on social media, according to reports. And a man identified as Cole White lost his job at a Berkeley, California, hot dog stand after Twitter users showed him among hundreds of marchers carrying tiki torches at the rally protesting the city’s plan to remove a statue of Confederate General Robert E. Lee.

Meanwhile, Verizon CEO Lowell McAdam is investigating a case in which an employee apparently wore company clothing while protesting at the rally.

“This has no place in our country, nor in our company,” McAdam wrote in a statement about the situation. “That’s why it’s distressing to learn that a man who marched with members of Nazi groups and the KKK was wearing Verizon gear.”

In addition, the University of Nevada issued a scathing rejection of the event and the views of student Peter Cvetanovic, who led the march and identified himself as a white nationalist. Yet the university’s president said the institution couldn’t legally expel him, even though some 10,000 petitioners said they believed he should be booted, according to reports.

The rally and death of Heather Heyer, who was killed when a vehicle plowed into a crowd of counter-protesters, spurred a national debate about racism and the place Confederate monuments and memorials hold in the South, a discussion brewing for years and one that might never be solved because of the affinity many Southerners hold for ancestors who fought and died in the Civil War more than 150 years ago. Two Virginia state troopers also died that day when their helicopter crashed as they monitored the protest.

The question about free speech and employment, however, is much more settled.

“You hear everybody say we have a right to free speech. We’ve known that since … grammar school when we learned about the First Amendment and right to free speech,” says Phillis Rambsy, a labor attorney with the Nashville office of the Spiggle Law Firm.

“It is true you have a right to free speech in this country, but that right to free speech as embodied in the Constitution means that the government can’t infringe on your speech.”

For instance, a person could walk down the streets of Nashville wearing a T-shirt with inflammatory language and Metro Police can’t arrest them. But that doesn’t apply to private employers, Rambsy explains.

“If you work for Subway or McDonald’s or Google or (Spiggle) law firm and you say something that the firm thinks is offensive or the company thinks is offensive, they can terminate you, and that right to free speech doesn’t apply,” she adds.

Companies can come up with policies stating they want their employees to act a certain way, to uphold a specific image, because they reflect on the company, and those policies have been upheld in court, Rambsy points out.

In light of the violent rally, she predicts more companies will produce rules specifying what they expect of their employees.

Employers don’t need a policy, though, to fire someone for using neo-Nazi slogans such as “Blood and soil,” among those shouted at the Charlottesville protests.

Most states, including Tennessee, have at-will work rules, meaning a person can be fired in the private sector for any legal reason, Rambsy says.

Likewise, one of the counter-protesters at the Charlottesville march could be terminated if their employer sees them on the news or social media and thinks they shouldn’t have been at the event.

“Obviously, most of what we’re hearing is they’re identifying people who were in the alt-right being terminated. But ostensibly, there would be nothing to protect one of the counter-protesters if they were terminated,” she adds.

On the other hand, the University of Nevada student would be protected because he attends a state institution, just as a student at MTSU or Tennessee State University would have in Middle Tennessee, Rambsy says. Even students at private schools have some protections, though she notes it would be interesting to see what might happen if a professor were to be seen participating in a deadly rally.

Common knowledge

Teresa Smallwood, associate director and postdoctoral fellow at the Vanderbilt Divinity School of Public Theology and Racial Justice Collaborative, isn’t surprised people are losing their jobs for participating in the Virginia march because “it has historically been done.”

Protesters can connect with corporations and bring about change, something that has been going on in America for years, even though it has the capacity to be “divisive,” Smallwood says.

Smallwood adds she believes most people want to the do the right thing. Yet, in the wake of the ramming death of one person and injuries to nearly 20 more people, she has no “real sympathy” for people who lost jobs as a result of the protest. James Alex Fields, 20, was arrested on suspicion of second-degree murder.

“What I can say, though, is in a democracy people ought to have the right to speak their piece. So, when you balance the question of First Amendment rights against people’s criminality, something has to give, and in this instance, I think the loss of job is probably a small price to pay,” she acknowledges.

Smallwood says she doesn’t believe companies need to worry, either, about coming up with a set of rules outlining the type of behavior allowed for their employees. The nation’s civil rights history is clear already that people have lost for taking stands on certain issues, she points out.

The biggest difference is the role reversal in terms of who is “experiencing the loss,” says Smallwood, who is African-American. “Because in the past it was black folks that got dismissed from the farm because their employer didn’t want their n------ down there, essentially, stirring up trouble.

“But what we also know is we do have to make the balance,” she adds. “And I want that balance to happen for everyone. But I also don’t want to subscribe to any kind of violence or activities that put human beings in danger.”

Legislative view

Conservative Republican Rep. Tim Rudd of Murfreesboro agrees free speech allowed in the Constitution means the federal government can’t come into someone’s home and arrest them for making a statement or taking a certain political stand.

“It doesn’t mean there aren’t consequences,” he adds.

Just as someone has the right to express a political opinion, others have the right to respond with opposite views, and in a “free society” an employer has the right to fire someone if they disagree with them for any reason, “if we truly have a free society,” adds Rudd, who is serving on the Legislature’s Unsolved Civil Rights Cold Case Special Joint Committee.

“But at the same time, I don’t know if it’s right to fire somebody over a political difference that happened outside the workplace that didn’t embarrass the company,” Rudd explains.

The freshman legislator admits not knowing much about the deadly rally and the aftermath. He says he doesn’t watch much news, mainly because it is “so negative” toward President Donald Trump and is “divisive.”

Trump has made several conflicting statements about the march, in some instances seeming to back the right-wing protesters, saying both sides had good people, and contending left-wing counter-protesters were violent, too.

Rep. G.A. Hardaway, a Memphis Democrat and member of the Legislature’s Black Caucus, was much clearer on the Charlottesville protest and its genesis, saying right-wing marchers feel emboldened.

“Why? Because the leader of the free world has stood before them on more than one occasion and told them it was alright, told them it was OK to be violent,” says Hardaway, who co-sponsored legislation leading to creation of the Cold Case Special Joint Committee.

Hardaway says he became emotional when watching images of “tiki-torch toughies out there terrorizing” in the city of the University of Virginia. Stories of the 1960s and civil rights movement came flooding back to him.

Looking at the tiki torches, Hardaway says he saw burning crosses, and when he heard the chants, it made him hear the Klan. Whether it was neo-Nazis, the KKK or white nationalists, they all have the same agenda, he says.

“But at the end of the day, what we do know is that America has a hole in its soul and what it takes to fix it is not gonna come from Donald Trump,” Hardaway adds. “We’ve gotta have hope, we’ve gotta have help to finish that hope out. He’s not capable. The type of leadership he has provided has done nothing but make America hate again.”

Running over protesters

Tennessee’s Legislature is one of several nationwide in which lawmakers tried to pass legislation to soften the punishment against someone who hits a protester with a vehicle.

Sponsored by Rep. Matthew Hill, R-Jonesborough, and Sen. Bill Ketron, R-Murfreesboro, the measure would have provided immunity from civil liability for the driver of a vehicle, exercising due care, who injures a person taking part in a protest or demonstration that blocks traffic in a public right of way.

It clarifies that the person would not have immunity if the actions leading to the injury were willful or deliberate.

The legislation came about after Black Lives Matter demonstrators blocked roads with peaceful protests in Nashville during 2016.

A spokeswoman for Ketron points out the legislation didn’t affect criminal liability, and any connection with it to the “horrific act” in Charlottesville wouldn’t be correct. Ketron sponsored the bill at Hill’s request and never scheduled it for a Senate hearing.

The legislation failed in a House subcommittee, meaning it is dead for 110th session of the General Assembly.

Hill contends his legislation, if it had passed, wouldn’t have had anything to do with the incident in Charlottesville, which appears to be a criminal act rather than a civil matter.

“We’re dealing with a lot of hypotheticals. What we do know in Charlottesville is that someone, it looks like at least, purposely and maliciously slammed their vehicle into people. My bill would not have endorsed or allowed any of that type of behavior,” Hill says.

The legislation wouldn’t give people a green light, either, to believe they could run over a protester and get out of trouble, he adds.

“If someone feels that way, then they are ignorant, because, obviously, it was never my intent for anyone to harm anyone intentionally,” Hill says. “And if someone were to try to attempt to use anything as an excuse to harm someone, then they’re a very stupid person, and if they hurt someone, they deserve to be in jail.”

Bubbling beneath

Rambsy says she believes the hatred on display at the Charlottesville rally has “always been here” and just needed something to ignite it. Social media adds to its proliferation, giving it a bigger platform and a recruiting tool.

In 2017, the planned removal of a Robert E. Lee statue was the catalyst. Eighty years ago, white Americans lynched blacks to keep them out of the voting booth, taking pictures as a form of intimidation, she points out.

Still, the nation’s economic engine could be an equalizer.

If a company supervisor led a weekend neo-Nazi rally, then returned to work Monday and started reprimanding black employees, more than likely the workers would think he was disciplining them, not for their performance, but because of their race, which would be a violation of federal law, Rambsy explains.

And as quickly as word spreads on social media, whether Facebook or Twitter, companies have to get out in front of the story to protect their image, including the Berkeley hot dog stand and Mojo Burrito.

“Their business was being attacked, and money makes businesses run,” Rambsy says.

Sam Stockard is a Nashville-based reporter covering the Legislature for the Nashville Ledger, Knoxville Ledger, Hamilton County Herald and Memphis Daily News. He can be reached at sstockard44@gmail.com.