Abstract
The articles included in this special issue are some of those which were presented at the conference entitled ‘Does Free Speech End with Employment Status?’ held in Dublin, Ireland in May 2024. The conference was supported by Maynooth University's School of Law & Criminology, and promoted by the International Association of Labour Law Journals (IALLJ). I am grateful to the contributors and all panellists whose remarks are not part of this special issue, particularly Professor Michael Doherty, Julie Galbraith (Head of Employment & Labour Law at Eversheds Sutherland Dublin), Tony Kerr SC, Peter Ward SC, Professor Manfred Weiss, and Professor Paul Wragg (who delivered the keynote address).
The topic for this special issue is one of many that are complicated by innovations in information technologies. It may be said that the problem is not new. There has been a tension between free speech and work predating the digital tools referenced in the following articles. While the contributions speak to this pre-existing pressure, they additionally reflect on how information technologies have complicated and exacerbated the issues surrounding free speech and work.
Free speech has been a key principle of a democratic society. The technologies discussed here facilitate this democratic right to an unprecedented extent. Nevertheless, social media (as one example of these technologies) are also fraught platforms for workers. The freedom to express online can be constrained in different ways. In common law jurisdictions, online speech may be limited by contracts of employment because contract clauses regarding social media use vest employers with wide discretion to assess these online comments. In civil law countries, the consequences of online activity can flow from dismissal rules, such as breach of trust or behaviour harmful to the employer. Speech matters can also arise in these jurisdictions within the larger concept of mutually suitable behaviour in employment relationships. Some questions arise from these considerations: Do these consequences have a chilling effect on workers’ speech? How does labour law balance a right to free speech in a democracy with that same speech resulting in the loss of employment? To what extent do constitutional protections extend to workers’ speech online?
Freedom of expression is not singularly a worker issue. Information technologies have also posed problems for employers, particularly those in knowledge or service industries. The questions for employers are no less complex. Employees in knowledge or service industries may take the initiative to promote themselves by expressing professional opinions on social media regarding current industry issues. How can an employer balance workers’ freedom of speech while also protecting against (inadvertent) disclosure of company information? Do post-employment disclosure clauses circumvent free speech rights? How can employers prevent an online toxic workplace when members of the public make derogatory comments about employees?
There are many questions posed above. The reason for this is that free speech and work is an important issue, particularly in democracies. With the number of changes precipitated by information technologies, the impact on free speech amongst the workforce has been significant. However, discussion of this development seems muted, especially in comparison to discussions in the broad area of citizens’ free speech and a free media. The distinct treatment warrants pointed and penetrating discussion. This special issue contributes to that conversation.
Judges’ free speech on social media is a unique and specific area of the broad topic of free speech and work. Evelien Timbermont and Louize Knops (Vrije Universiteit Brussel) contribute insights drawn from their theoretical and empirical study of judges on social media platforms. They observe that judges’ engagement in public discourse can reveal a conflict between their free speech and a duty of discretion. Analysing European Court of Human Rights decisions, the authors set out how the exercise of judicial freedom of expression is moderated by the context and subject matter of the expression, particularly when conveyed via social media.
In ‘Revisiting Redfearn: The European Convention on Human Rights and the Protection of Political Opinion in the Workplace in Great Britain’, Ed Jones (Leeds Beckett University) takes readers back to the European Court of Human Rights decision in Redfearn v UK. This article maps out terrain that was not travelled in that decision: the introduction of political opinion or affiliation as a protected characteristic. Jones argues that had the ECtHR done so the Court ‘would have created a course of action enabling a much wider range of workers (and applicants) in a broader range of circumstances to litigate alleged interferences with their Article 10 (and 11) rights.’ To manifest this, he advocates for a ‘realistic legislative reform’ to the UK's Equality Act 2010.
In ‘He who pays the piper calls the tune? Free speech in the employment context in Germany’, Rüdiger Krause (Georg-August-University Göttingen) offers readers a thorough treatment of the history of workers’ speech in Germany. He observes that humans are not robots. They communicate for many reasons, including those related to feelings, fears, and views. His article provides several insights within the German context that can be more widely applied.
Steven Wilborn (University of Nebraska-Lincoln) offers a valuable addition to the topic in ‘Employee Speech in the United States: The Two Regimes’. He contends that two regimes exist in the United States for protecting employee speech: one for public sector workers, and the other for private sector workers. These regimes have different applicable laws, are designed in distinct manners, and also have particularised enforcement. He observes, with irony, that even though public sector workers are protected by the iconic First Amendment, their protections tend to be less robust for work-related speech than those for private sector workers.
Amir Paz-Fuchs’ (University of Sussex) article, ‘From Belief to Speech and Back Again’, highlights and advocates for several principles and issues that suffer from stagnating forces within the context of freedom of expression in the employment realm. He offers several observations. There is an emphasis placed upon political speech (issues of public importance). The freedom of belief lacks a concrete form and yet also ‘enjoys absolute, unqualified protection’. The distinction between protection of expression of belief and protection of speech is muddled. There should be a critical regard of employment contracts and handbooks that restrict freedom of speech. Finally, the practical limits of these principles should be outlined.
Alan Eustace's (Trinity College Dublin) contribution, ‘Bring your whole self into work, keep your whole self out’ classifies the ‘worker expression problem’ as a compounded matter: it is not only an example of conflict between labour and management, but this problem additionally reveals ‘a contradiction at the heart of labour law itself’ between what the article calls the “whole self” approach on the one hand, and the “work-life” approach on the other.
