
Contents
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22.1 Why Freedom of Expression in the Workplace Matters 22.1 Why Freedom of Expression in the Workplace Matters
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22.2 Public Employee Speech Rights under the First Amendment 22.2 Public Employee Speech Rights under the First Amendment
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22.2.1 The First Amendment in Individual Disciplinary Decisions 22.2.1 The First Amendment in Individual Disciplinary Decisions
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22.2.2 Systemic Regulation of Public Employee Speech and Association 22.2.2 Systemic Regulation of Public Employee Speech and Association
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22.2.3 Janus and the Double-Edged First Amendment 22.2.3 Janus and the Double-Edged First Amendment
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22.3 Non-Constitutional Speech Rights in the Private Sector Workplace 22.3 Non-Constitutional Speech Rights in the Private Sector Workplace
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22.4 Conclusion 22.4 Conclusion
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22 Freedom of Expression in the Workplace
Get accessCatherine A. Rein Professor of Law, NYU Law School, New York, United States
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Published:10 February 2021
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Abstract
This chapter addresses the implications for democratic government of employment-based limitations on freedom of speech. The workplace is a distinctive expressive domain because the ‘censor’ and the speaker are typically bound together by an employment contract that affords the former a large measure of hierarchical control over the latter. The employer, having hired the employee to do a job, has legitimate interests in regulating some employee speech. The employee, for their part, is typically dependent on the employer for their livelihood, and vulnerable to the employer’s overreaching beyond those legitimate interests. Those features of the employment relationship give rise to a distinct set of questions about the value and limits of free speech in the workplace setting, public or private. The chapter then focuses on how US law, primarily constitutional law but also non-constitutional law, has dealt with those questions. While the US law governing freedom of expression in the workplace is unique in some ways, the problems it deals with will arise in any society that both recognizes the value of freedom of expression and channels labour into the production of goods and services largely through the institution of employment.
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