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Philosophy of Management

01-08-2024

“You Can’t Say That”: A Normative Account of Speech Rights and Limits in Organizations

Author: David Bauman

Published in: Philosophy of Management

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Abstract

Claiming that citizens have a “right to free speech” signals to those in free and democratic societies that speech is a freedom that should be protected. Claiming this right, however, does not explain the limits of that right, such as who can speak and what they can and cannot say within organizations. Unlike other articles that describe the legal limits of speech rights, I provide an account of how speech rights can be ethically justified inside and outside of organizations. I first make three assumptions about how strong common interests in speaking and owning things eventually became moral rights and then legal rights within free societies. I also explain how an organization’s property rights and right to make and dissolve contracts can justify managers in limiting free speech. Using principles from rights, fairness, and justice, I further describe when managers should and should not limit speech based on organizational roles and speech content. In some cases, employees could argue that speech limits are unfair if employees in similar circumstances are not allowed to speak on similar topics. I conclude by analyzing whistleblowing as employee speech that managers may try to limit using property rights or consequentialist arguments, but that society protects as a requirement of justice.

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Footnotes
1
The arguments in this article assume that citizens live in a society that allows and protects basic speech freedoms and ownership of some property. As we will see, property rights may justify organizational leaders in limiting some employee speech.
 
2
In a society or community that subordinates all individual interests to the interests of the community, I would argue that the individual members may have a personal interest in expressing ideas (e.g. I want chocolate and not broccoli) and owning property (e.g. a coat in winter), but the culture may suppress and deny the permission to act on these interests. Consider the many girls and women who attended school in Afghanistan during the US occupation, but who now cannot attend school under the Taliban. Having an interest in speaking and not being allowed to act on that interest are not mutually exclusive.
 
3
When discussing the conceptual structure of rights, the interest view and the claim or choice view are often contrasted. I am using the interest view as described above. The choice view developed by H. L. A. Hart (1984) argues that free and autonomous people who have a right can choose to control the duty of others to act or to not act. For example, if I have a right to speak, then I can choose to control the duty of others to interfere or not interfere with my speech. If they interfere, they have violated by right. Similarly, if I have a right to vote, then I choose to control the duty of others to not interfere with me voting. Two problems with this view are that it only applies to rational, autonomous people who can choose to exercise their rights (e.g. not babies, mentally disabled individuals) and it allows agents to choose to renounce their rights and the duties of others (e.g. sell oneself into slavery). Rights are not inalienable (non-transferable) in a choice view. Societies denied inalienability to enslaved people, women, and others who supposedly did not have the rationality to be autonomous. The interests view is more open to rights not relying on autonomy (Ivison 2008).
 
4
The main objection to the interest view is that anyone could claim an interest as a right, like claiming a right to eat lunch in the middle of a busy highway. To avoid this objection, interests must be justified in a way that others would agree that the boundary around that freedom should be respected. A similar objection is that the interest view could create a proliferation of rights or impose rights that some societies do not want. The objection also applies to interests that are claimed as human rights that do not consider the multiple interests humans have across cultures and the difficulty in creating boundaries around all interest claims. To avoid the implications of this objection, I am only considering the common human interests in owning something and expressing oneself.
 
5
A similar argument based on a person’s linguistic ability to agree to these agreements is made by Alan Gewirth (1978, 1984) and re-presented by Alan White (2019, 2020). I am not arguing that a person must agree to these two rights, but that a rational person would agree to them.
 
6
I am not claiming that rights exist in nature (i.e. natural rights) apart from humans and basic institutions, but rather that citizens often talk as if “rights” exist regardless of whether or not a government protects them. Jeremy Bentham famously argued that natural rights cannot exist outside of a government that creates and enforces them. He stated that a natural right “is a son that never had a father” (1987, 73). Rather than arguing that natural rights exist, I am arguing that moral rights arise from common human interests before they are codified into a law. See also Werhane’s excellent analysis and justification of moral rights (Werhane 2019).
 
7
Holmes and Sustein (1999, 40) describe the proponents of negative rights as arguing for minimal government interference in a citizen’s liberty, privacy, and property. Like these authors, I acknowledge the important role of the state in protecting a citizen’s negative rights from interference by other citizens and the government. I do not agree with their argument that all legal rights are positive rights because they require state support (43). For example, exercising my negative right to walk in my back yard or paint my kitchen (right to property) does not require state support. I may seek the government’s protection if someone won’t sell me paint because of my race, gender, or religion, but in most cases I do not need government enforcement to exercise my right to do what I want on my property.
 
8
Prima facie rights are not absolute, but neither do they disappear or become ineffective when weightier rights claims are made. Some have described rights as pro tanto (i.e. only to that extent) which means that they do not disappear when contradicted or challenged. In what follows, I continue to use the term prima facie in contrast to absolute, but I use the term to mean that the protection of the right may be reduced, but not fully removed. For example, what if a person has the prima facie right to speak about a legal matter, but the corporation says not to speak because the information is confidential. The individual right to speak does not disappear just because the corporate property right is asserted. If the government tells the individual that they must speak, the individual speech right increases in its power against the property right of the corporation. Thanks to an anonymous reviewer for this clarification.
 
9
I again emphasize that I am assuming that the employees and the employer reside in a state that recognizes and protects speech rights outside of organizations and grants legal rights to the corporations to make contracts and own property.
 
10
Some governments have enacted “sunshine laws” that require all public employee salaries be published for the purpose of creating government transparency. The property rights of the state trump the privacy rights of the employees. The United States Securities and Exchange Commission (SEC) has required publicly traded companies to publish senior officer salaries and bonuses since 2007. The purpose is to reveal financial transactions and senior management and board member relationships (United States Securities and Exchange Commission, 2006). The ethical justification for sharing this data is not property rights, but most likely a consequentialist justification. The SEC argues that society and investors are benefited when the company shares information on senior manager financial relationships and provides an accurate state of the corporation.
 
11
An organization’s property rights and economic benefits are often interpreted as justifying management’s power to limit employee speech. According to Barry (2007b), “Vickers (2002) describes a number of factors supporting an employer's prerogative to limit worker speech, including (a) the firm's economic rights to pursue profits; (b) the employer's right to manage a business as it sees fit; (c) the employer's right to cultivate and maintain the loyalty and trust of workers; (d), the firm's interest in safeguarding a reputation that free speech might jeopardize; and (e) the firm's right under U.S. and European law to some of the same rights as persons, including speech rights. These specific employer interests may rest atop a broader public interest in business efficiency and effective management as a means to social prosperity and macroeconomic stability” (278). Barry argues that economic arguments should not always trump employee speech rights. He states that, individual rights to “expression, conscience, and moral independence outweigh the economic autonomy and discretion of the firm” (2007b, 280).
 
12
Like Woodruff, I am putting aside John Rawls’ argument that “justice is fairness.” Rawls’ conception of justice as fairness is developed as an ideal theory for organizing just/fair political and social institutions (1999). According to Rawls, a person who voluntarily benefits from a just or fair institution has an obligation to do their fair share to support just institutions, which means following his principles of justice (1999, 96). My view is based on Plato’s and Aristotle’s discussion of justice. I narrow my discussion of fairness to experience within organizations and my discussion of justice to citizens who may or may not be members of an organization within a society.
 
13
Reitz and Higgins propose that managers manage speech at work rather than ban it. They recommend that leaders build empathy and respect for others, be open to different perspectives themselves, accept mistakes when employees are inarticulate, and teach people how to disagree and remain productive (2021).
 
14
Employee B’s manager is not acting illegally in this case because many legal systems protect the employer’s right to control what is done and spoken on their property. See Barry 2007a, 2007b, and Estlund 2021 for a review of US laws and speech rights in the workplace.
 
15
Guidance for legally managing religious expression in different countries is provided by the Society for Human Resource Management: https://​shrm.​org/​.
 
16
I am not focusing on justice as an individual virtue. Individuals act justly when they give others what is owed, and they act unjustly by outdoing others (Gk. pleonexia or greed) which means taking more than their share.
 
17
Case 1 in which the IT employee shares salary data could be justified against the company’s property claims under the requirements of justice if the purpose and foreseeable result of the salary data release was to reveal widespread pay discrimination and to rectify the situation.
 
18
Other examples of whistleblower protections include an amended Whistleblower Protection Act in Japan which was enacted in 22 June, 2022. The law protects whistleblowers from dismissal and other disciplinary treatment. It also requires companies to create a whistleblowing system that employees can use to report problems internally (Murakami, Yamasaki and Matsuda 2023). The European Union passed a whistleblower directive which all EU nations are required to transpose into laws that protect whistleblowers from retaliation. “The directive plays a key role in the enforcement of Union law in a number of important policy areas where breaches of Union law may cause harm to the public interest, ranging from environmental protection, public procurement, financial services, nuclear safety and product safety, to the protection of the financial interests of the Union” (European Commission 15 February, 2023).
 
19
Wieman v. Updegraff, 344 U.S. 183: 193 (1952).
 
Literature
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Metadata
Title
“You Can’t Say That”: A Normative Account of Speech Rights and Limits in Organizations
Author
David Bauman
Publication date
01-08-2024
Publisher
Springer International Publishing
Published in
Philosophy of Management
Print ISSN: 1740-3812
Electronic ISSN: 2052-9597
DOI
https://doi.org/10.1007/s40926-024-00316-0

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