>>> "Lisa & Ian Murray" <seamus at accessone.com> 02/14/00 07:36PM >>>
Well, the govt. "gives" corporations the power to censor their employees'
speech (among others) by not prohibiting the corporations from exercising
that power. One might have thought that corporations have that power in
virtue of being, well, powerful. Part of the point of limited govt. is that
the govt. does not have unlimited power to interfere with how nongovt
entities
and private persons exercise their powers. The govt. has restricted to some
degree the power of corporations to censor speech, for example, by passing
whistle blower laws and other anti-retaliation statutes.
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CB: The power you mention is more specifically the power to fire the employees, the ultimate employer sanction. There is a common law doctrine that all employement doctrines are at-will of both parties. So, the boss can fire you for no reason.
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But look, if the problem is that "the only way to have freedom of the press is to own one" (A.J. Leiblling), don't blame the 1A or even the Constitution. The problem is private ownership of productive assets.
======= Following R. Hale and M. Cohen isn't private property itself a grant of privilege by the state? So, if the right of speech is independent of the issue of ownership of property, then, again, where does the right of property grant a right to curtail speech if the government has no power to delegate the right to a curtailment of speech? I'm thinking here of Hale's notion of "private government" and the emergence of the doctrine of countervailing power.
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CB: The effective law is the power to terminate the employment contract at will if you speak in a way they do not want.
The Constitution's Fifth Amendment provides that no private property can be taken by the government without due process and just compensation. However, this is not exactly the basis for the power of a private employer to fire a private employee. In some extreme case, such as a plant closing with lots of layoffs, this private property clause prevents the feds/states from stopping the plant closing, and preventing layoffs, so that would be sort of the Takings Clause enforcing the private right to fire people. But that doesn't have a speech of the employees' issue involved.
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>From a simple class perspective, when workers are being censored, abused,
whathaveyou by firms, they're feeling the direct effect of government by
it's very absence of defense of their rights. Those who are conscious of it
think that the firm is simply an authoritarian government by another name
and I think Hale for one would agree with them. So the Govt. is UNlimited
in it's capacity for self-abnegation [the ability to withhold countervailing
power]. Nothing in the Commerce Clause constrains it; only the 5th A serves
as a boundary constraint, and it's hard to see how protecting speech in the
workplace is a takings.
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CB: There is a Constitutional provision barring the feds/states from impairing the rights of contracts, so the govt. can't interfere with the employment contract might be another argument.
********* Well, the parchment isn't supposed to do much in the law of labor relations. Leaving aside govt. employees, that's a private matter between private parties, workers, unions, and private employers. It's regulated by the NLRA, passed under the Commerce Clause. You wouldn't expect the Constitution to do much work here. It does impinge here and there, but not a lot. Public employees have more in the way of constitutional rights of course, because their employer is the govt., which is restricted by the Constitution. GM can decide to fire all the socialist workers (both of them), and they can't do a thing at law. If the state of Michigan does likewise, they can hale it into court. ============
CB: Good
&&&&&&&&&&& It seems obvious to this naif that the above is a violation of the equal protection clause. Why should govt. serfs have more rights on the job than corp. serfs? Also, by what you state, the CC serves as the constitutional "basement" for the NLRA just as the CC [& 14thA-implied] serves as the "basement" of title VII, so why can't 1A serve as the "basement" for speech rights on the job, just as the freedom of assembly clause indirectly serves as the basis for collective bargaining? I know it's ideology that's the reason it's fucked up for "private" employees in the US, but still the sophomoric itch scratches for the why behind the ideology.
******* CB: Equal protectino does not apply to private parties. There must be state action
>>>>>>>>>>>>.
Btw, getting the Constitution out of labor relations was a great victory of left and Progressive activism of the 1920s and 1930s. From the 1890s to 1937, the courts used the due process clause of the Constitution to attack any laws that regulated labor relations.
Were they getting the C out of it or just using different parts of C to roll back the abuse of due process in the C by corporate lawyers and laissez-faire judges [again, Hale, Cohen, Hohfeld and Horowitz' take on LR]?
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CB: Trade unions were outlawed as criminal conspiracies until the New Deal , NLRA legislation. Criminal syndicalism
CB