United States: How The Misconception Of ‘Free Speech' In The Workplace Persists Through High-Profile Examples Of Social Consciousness

With the NBA season set to begin this month, so many eagerly anticipated storylines are being discussed. Would the Clippers and Lakers live up to expectations and make Los Angeles the place to be this season? How are teams going to match up with the Sixers' massively sized lineup in today's era of small ball? In this era of player empowerment, as I wrote about last week, what other moves may be on the horizon? In general, this season—the first in a while without a clear-cut preseason favorite—is gearing up to an exciting one.

Unfortunately, one unanticipated storyline drowned out the rest: China. As many people know by now, several weeks ago, Daryl Morey, General Manager of the Houston Rockets, tweeted a message of support to protesters in Hong Kong. This tweet subsequently resulted in considerable backlash, including strongly worded statements of dissatisfaction from Chinese authorities, the cancelation of exhibition games in China, and a whole host of other actions.

The NBA's commissioner, David Silver, admitted that the league has suffered significant financial losses as a result of this issue, and experts believe the league's salary cap for next year may be affected due to the league's reliance on certain revenue from China, which may now be in jeopardy.

Misunderstanding the Right to Free Speech

As is often the case, people within and outside the NBA all had to weigh in on this controversy. Certain people criticized Morey, either for making the comment altogether or for Morey's timing in making the tweet on the eve of the NBA's visit to China for certain exhibition games and outreach events. Others sided with Morey and, in doing so, often referenced their support for his "right to free speech." Yet people still continue to have a misconception about the right to free speech.

The First Amendment provides citizens with the right to free speech protected from any government retaliation or interference. With some exceptions, generally speaking, there is no right to free speech in the context of the private workplace. Legally speaking, the NBA and the Houston Rockets have the ability to discipline Morey for his tweet due to its harmful impact on their bottom line. But being socially conscious employers that are highly visible publicly, they aren't going to do so.

It's the same reason David Silver and the NBA decided, on the other hand, that they had no choice but to ban Donald Sterling, the prior owner of the Clippers, for life when unconscionable racist comments made by him came to light. The NBA cares about not just its financial bottom line but also its image in the public eye (which, let's be honest, also impacts its bottom line).

Free Speech Rights in the Workplace

There are certainly some protections and limitations within the workplace when it comes to speech and expression. The National Labor Relations Act (NLRA) gives private employees the right to discuss their working conditions, including pay, benefits, safety, and other work-related conditions, as this is considered "protected concerted activity."

In addition, employees under both federal and state law are protected from harassing and discriminatory remarks and conduct, and therefore, employers have a legal obligation to police and prohibit this type of behavior and speech. Other than this, there aren't any free speech laws at the federal level applicable to private employers, although there are certain states that have "political activity" or "off-duty conduct" laws that give employees rights not provided at the federal level.

Employers, therefore, should have a clear written policy that sets forth what activity, speech, and conduct are permitted and prohibited within the workforce. Of course, employers must set these parameters on employee workplace speech so that they don't fall under the umbrella of the NLRA. Additionally, it is, of course, of paramount importance that any such guidelines be crafted and uniformly enforced so all employees are treated equally. However, the reality is that what your company decides to permit or prohibit will be based on the culture that exists or that you want to foster.

The news is filled with companies that have decided to publicly take a position on various issues, whether those issues include gun control, the support of specific political candidates or certain political positions, Time to Vote campaigns, and various other causes. These companies also actively permit and, in some cases, encourage their employees to discuss these issues. The reality is that these companies are not encouraging "free speech" in the workplace because they are required to by law. It is because these companies either have an interest in being known as the type of establishment that encourages employees to express their ideas or have a certain "brand" that they want to cultivate within the public consciousness.

So next time people say or tweet something controversial and don't receive any punishment from their employer for it, don't be one of those people who says, "Well, they exercised their right to free speech and therefore couldn't face discipline." Be one of those people who says, "Their right to free speech doesn't extend to that comment, but their employer couldn't terminate them because it didn't want to look bad to the public or its other employees." Not only will you be right, but you'll also sound smart saying it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions