But these aren’t conventional times, and the conventional legal approach doesn’t make sense today. Briskman’s firing is unconscionable, and it should be illegal.
Why? We have a president who doesn’t hesitate to insert himself into private workplace disputes, and is thereby turning the workplace into a battleground for politics and public policy. By doing so, he is breaking down the distinction between work and politics and thus reshaping the way the Constitution and the private sector workplace interact. Allowing Trump to tweet his views about workers, but not protecting workers who tweet their views about him, effectively turns our system of constitutional protections for individuals on its head.
Trump’s interventions into private-sector workplace disputes started at least as far back as the debate over the offshoring of jobs at the Carrier Corporation’s plant in Indianapolis. During that debate, Trump, using his personal Twitter account, all but blamed the union for the job losses and attacked Chuck Jones, the local union president:
More recently, and infamously, Trump has become personally involved in the dispute between National Football League owners and players over national anthem protests. Here, Trump has called on owners to fire or punish their players for kneeling during the national anthem, even though, unlike in the National Basketball Association, the players’ collective bargaining agreement doesn’t require that they stand for the anthem. At a political rally in September, Trump impugned NFL players’ patriotism and said that owners’ response to a protesting player should be to “get that son of a b— off the field right now, he’s fired. He’s fired!” Later, he tweeted:
Given Trump’s repeated decision to insert politics into private-sector workplace disputes, it’s time for courts to offer heightened protection for private-sector employees’ political activities. If the president can tweet about workers, then workers must be able to tweet about, remark on and — yes — flip off the president. And protecting these rights means that employers must not be able to fire workers who engage in these political acts.
A legal precedent that’s already on the books offers courts a road map for offering this protection. Novosel v. Nationwide Insurance, decided in 1983, involved a private-sector employee who was discharged after he refused to participate in a lobbying effort on his employer’s behalf. When he was fired, he sued, claiming that his discharge was contrary to the public policy of the state. In something of a groundbreaking decision, the U.S. Court of Appeals for the Third Circuit held for the employee. The court reasoned that public policy could be derived from the First Amendment, that the First Amendment protects political freedom, and therefore that actions taken by employers that significantly impinge on political freedoms (such as firing an employee who refuses to take part in an employer’s lobbying campaign) can violate public policy.
Novosel is a favorite of law professors, but has largely been ignored by courts and remains an outlier because it enables employees to import the First Amendment to the private sector workplace through a lawsuit, and thus to avoid what otherwise would be the extinguishing effect of the state action doctrine — the rule that the Constitution restricts what the government can do but not what private actors can do.
But, today, given that Trump is turning the private-sector workplace into a political arena, the logic of Novosel should have greater appeal and application. The decision gives courts a way to hold that it is against public policy to allow the president to attack private sector workers while permitting employers to silence employees who respond in kind. Indeed, in a democracy where constitutional rights exist to protect private citizens from the government, it must be contrary to public policy to let the chief executive attack private employees on social media while allowing the silencing of private employees who use social media to protest the president.
The logic of this rule would be most obvious in a case where the protesting employee had been personally attacked by the president. If that employee (say, Chuck Jones) could be fired for defending himself, Trump would have a ridiculously unfair advantage in the public debate. But the rule also should cover employees, such as Briskman, who have not personally been attacked by the president but who nonetheless express disapproval of him or his policies. Once the president makes the workplace a political battleground, the Constitution should ensure that the battle is not one-sided. And since nobody can fire Trump for his tweets, employees must not be fired for theirs — otherwise, the constitutional protection for free expression starts to become illusory.
A version of this article first appeared on OnLabor.