Eugene Volokh of the Washington Post asks the question, can private companies fire employees because they attended a white supremacist rally? Of course, for the liberty-minded among us, that’s not enough a question. But the fact that the question needs to be answered at all illustrates the degree to which people are conditioned to automatically assume they need permission to act on a fundamental “right” to free association.
The fact that his answer turns out to not be so cut and dried (he starts off telling is it depends on the state where the firing took place and where the employee is working), should further illustrate how the ‘laws’ of this land do not exactly match up with the reality of liberty that all humans naturally possess. In this case, the reality of liberty is simply that of being able to freely associate with others, end stop, no qualifier.
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That turns out to depend on the state where the employee is employed. (Note that I’m speaking here of firing for attending such a rally or speaking at it, not engaging in criminal violence connected with it.)
- The First Amendment applies only to government employers; it doesn’t apply to nongovernmental entities (whether or not those entities have government funding or contracts). Let’s focus then on private employers who fire such employees based on their own judgment (not because of some pressure from the government, which may well be unconstitutional).
- Private employers are, of course, bound by various statutes. But federal employment law bans discrimination based on race, religion, sex, national origin, age, disability and various kinds of labor-union-related activity. It doesn’t ban discrimination based on political affiliation.
- A substantial minority of states, though, do ban discrimination based on political activity, especially off-the-job political activity; some cities and counties do as well. I cataloged them in 2012 in my article “Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation“; since then, Utah has enacted a similar statuteas well.