Politics/Law/Government

The New Constitution: Amendment II – freedom of speech and the press, assembly, and redress of grievances

The New Constitution

Amendment II

No corporate, commercial or other private or publicly held entity shall abridge an individual’s freedom of speech or the rights of a free and unfettered press; the right of the people peaceably to assemble, and to petition for a redress of grievances will not be infringed.

Rationale

In modern America, nothing poses a greater threat to individual liberties than the private sector. Corporations and other business entities routinely exert pressure on free expression, especially that of their employees.

If we assume that liberty depends critically on free expression in all its manifestations, including the right of a free press, then it logically follows that these rights must be defended against all repressive forces, not simply governmental ones.

Comment: Employer Disparagement vs. Non-Employment Related Speech

During the review phase of this process, multiple people asked about potential conflicts between this amendment and the rights of a company to conduct business, and in doing so they raised a valid point. Certainly we cannot act to safeguard any and all speech activities where businesses are concerned, can we?

First, it will become clear later in the New Constitution series that individuals have rights, but collective entities such as corporations do not. As such, in any case opposing an individual’s rights vs. the interests of a business, we will accord presumption to the individual.

That said, this amendment is intended to curtail corporate encroachment upon an individual’s non-employment related expression. An example illustrates the point.

Suppose person A is employed by XYZ Corporation, a large technology company that provides software and a variety of online services including a search engine.

Instance 1: Employee A is quoted in a magazine article saying that XYZ’s search engine is deficient, and that its competitor’s offering is far superior.

Instance 2: Employee A, while engaging in civic activity independent of work, is quoted in a magazine as saying that the mayor of the city in which XYZ is located (a close personal friend of XYZ’s CEO and a supporter of the company’s mission) is incompetent.

In instance 1, it is not unreasonable to at least infer a contract between XYZ and A that would regard disparagement of the company or product as malfeasance. In this view, it wouldn’t seem to be objectionable if XYZ terminated A for cause. In instance 2, however, A is not at work and isn’t engaged in any work-related activity of any sort. He/she is speaking either on his/her own behalf or on behalf of a civic third-party. In this case, the rights of the individual acting as a public citizen should not be abridged.

Our society has, in recent years, evolved an ever-more-expansive concept of corporate brand. Businesses take their public image quite seriously, as they should, and any action on the part of a company’s representatives or employees that damages the company’s reputation can be treated as malfeasance. Embarrassing the company is, in short, regarded as a firing offense.

This view of brand serves no compelling public interest, and in fact mitigates against the greater social benefit attending free expression. If freedom of speech is central to the function of the Republic, then anything that encroaches upon it works against the common good.

I am open to debate on the “disparagement” question. I am not convinced that employers aren’t entitled to a certain measure of loyalty from those who work for them. (This doesn’t include cases of legitimate whistleblowing, of course.) As a result, I may be convinced that disparagement isn’t deserving of constitutional protection. I may also be convinced that it is, and I invite comment on this point.

_____

Index: The New Constitution Series

12 replies »

  1. The ONLY justifiable consequences to disparaging an employer, it seems to me, are those which the employer is empowered to impose: i.e., chastising, “writing up,” demoting, firing. This is not a legal matter. A person should always have the right to speak against his employer (or anyone/anything else), if they understand and are willing to accept the resulting consequences.

    It gets a bit stickier when one considers the “rights” an employer should have to control the behavior and thoughts of its employees, and I don’t presume to address that here.

    Did you INTEND to eliminate protection against governmental censorship and repression with this amendment? I should think that government should continue to be explicitly mentioned in your list, which as it stands seems to only offer protection from corporate entities.

    • “No corporate, commercial or other private or publicly held entity…” includes government – the key word is “public.” However, if this wording threw you I might want to strengthen it a bit.

      • It sounds like “privately or publicly” held company, at least to me. Since government is one of the greatest threats (and the one explicitly protected against in the current 1st Amendment), I think it should be explicitly mentioned. Concision is important, but you don’t want to leave wiggle room for lawyers!

      • The wording threw me also — I’d missed your intent to cover government by the way that was phrased.

        Also, your last graph comment re: employers being entitled to a degree of loyalty. I’d have more inclined to agree with you when I was fresh out of college than I am now. Once, most employees could count on a measure of loyalty from their employers as long as the employee worked hard. But over at least the last two decades, many (not all) employers have demonstrated a willingness to dump employees simply to nudge the profit margin up a few points. Loyalty ought to be a two-way street.

  2. I read this as making it impossible for a corporate entity to exclude the public from any property. While I applaud this for a mall, I think corporate headquarters might be different (that is, a mall should be public space, but it’s not unreasonable for a corporation to have laboratories or offices which are not public space. How do we make that distinction?

    • Hi Evan. This is an objection that one of my reviewers was wondering about. The intent here is to prevent active infringements by corporations, as opposed to forcing them to throw open their doors to anyone and everyone. I’m thinking about how to word that, because certainly we shouldn’t be making the ability to conduct legitimate business activities impossible.

  3. I will argue until I’m blue in the face that if XYZ’s product is demonstrably worse than ABC’s, then XYZ should NOT be able to terminate an employee for acknowledging a truth that prima facie evidence proves to be true. The burden of proof for showing that the employee made such an acknowledgement for the purpose of injuring XYZ seems to me to rest squarely on XYZ.

  4. I applaud any and all efforts to protect the rights of the individual from the rights of the collective entities so I am all for this ammendment. Several comments seem to be directed at concerned about the potential damage to the collective entities. Personally, I do not see any reason to be overly concerned about Monsanto not being able to protect itself from Polly Nation. Contracts should be more than sufficient and, even in that case, I think the law and/or constitution should be biased toward the individual. It gets a little muddier when the individual joins forces with another collective entity, including the government. Then we get closer to a fair fight.

  5. I think we need some defining language on what constitutes an “individual”–or at least what differentiates peple from corporations. The line between individuals and corporations has gotten awfully blurred in recent decades, and not in a positive way.

    I’m enjoying all this immensely, I have to say. Well done!

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