Stop Imposing 'Captive Speech' on Employees

The First Amendment to the U.S. Constitution guarantees not only the freedom to speak but also the freedom not to listen. The U.S. Supreme Court has recognized that "no one has a right to press even good ideas on an unwilling recipient." Nevertheless, American businesses are increasingly violating the First Amendment freedoms of their employees.

Frito-Lay Inc., one of the world's largest producers of snack foods, is also one of America's worst abusers of employees' right not to listen. It routinely not only compels its employees to listen to anti-union diatribes, on company time and property, but also forces its drivers to allow anti-union advocates to accompany them on their routes, requiring the captive drivers to listen to their anti-union speech.

Frito-Lay sugarcoats what it is doing by portraying this as merely "communicating" with its employees, i.e., exercising its own right to free speech. But an Aug. 6, 2007, letter, sent to several hundred Teamster-represented employees in Washington State informing them of Frito-Lay's impending effort to oust the union, had menacing undertones: "We will probably use several methods of communication over the next few weeks, including employee meetings, letters, route rides, and individual discussions." Left unstated, but nonetheless crystal-clear to employees, was that listening to these "communications" would not be voluntary. To the contrary, any refusal by an employee to participate in such communications - wherever, whenever, and for however long the company wished - would be grounds for discharge.

Unfortunately this kind of behavior is not unique to Frito-Lay. Many American companies take advantage of the intrinsic vulnerability of their employees at the workplace. A report for the federal government, based on a study of more than 400 union-representation election campaigns, found that during 92 percent of union-organizing drives employers forced their employees to attend closed door anti-union meetings. In addition, 78 percent of employers directed supervisors to deliver anti-union messages to employees in one-on-one meetings.

Not surprisingly, employers have never seen fit to grant union representatives the same equal right to address employees. And nothing in federal law requires companies to let labor representatives onto the employer's property to speak to workers, even if just to give an alternative view to the employer's anti-union speech.

So in many American work sites today not only are workers' First Amendment freedoms being violated on a regular basis, but there's also no free market of ideas. Instead there exists a communication monopoly where workers are subjected to Soviet-like conditions, indoctrinated into the employer's anti-union credo and relentlessly harassed by their employers.

To counter this, a nationwide campaign has been launched to win basic First Amendment freedoms for workers. A proposed law, entitled the "Worker Freedom Act" (WFA), would make it illegal for an employer to require workers to sit through meetings while the employer lectures on religious or political beliefs, including beliefs about joining a union. This law would not prohibit employers from sharing their opinions with their employees, but it would grant the employees the right to walk away.

The WFA has been introduced into numerous state legislatures and the Michigan, New Hampshire and Oregon houses of representatives all have passed it. It was passed by the Colorado legislature in 2006 before being vetoed by the governor. Clearly, a lot of people agree with the U.S. Supreme Court that there is a compelling need to "protect listeners from unwanted communication." Whether in situations like children in school or passengers on a bus, the court wrote that "the First Amendment permits the government to prohibit offensive speech as intrusive when the 'captive' audience cannot avoid the objectionable speech."

If "captive speech" is not permitted to be imposed on students in school, why should it be imposed on workers at their jobs? Should American workers have to forfeit their First Amendment freedoms whenever they show up to work?

It seems oddly un-American that in the 21st century American workers don't enjoy basic First Amendment freedoms granted by the Bill of Rights over 200 years ago. The current momentum in favor of the Worker Freedom Act suggests that Americans recognize it is simply wrong that working Americans are routinely denied this basic right. It flies in the face of our most sacred traditions. Free speech is as American as apple pie, and it's past time to support legislation that will protect workers' and worker representatives' First Amendment freedoms in the workplace.