Questions and Answers on Speech in the Workplace
Since librarians have a special responsibility to protect intellectual freedom and freedom of expression, do librarians have a special responsibility to create a workplace that tolerates employee expression more than other professions?
Yes. Libraries play a special role in ensuring the free flow of information in a democratic society. Librarians are often called on to fight censorship and resist efforts to restrict individuals from receiving information and expressing ideas.
If library workers are denied the ability to speak on work-related matters, what does this say about our own commitment to free speech? We need to demonstrate our commitment to free speech by encouraging it in the workplace.
Do I have an ethical obligation as a professional to raise questions and initiate change about policies I believe to be detrimental to the public interest or to the profession?
In these and other situations, you should and probably will feel an ethical obligation as a professional to speak out and make your library values known. You will have to use your professional judgment as to when and how to do so, and you must be prepared to accept the consequences. Libraries are encouraged to adopt ALA policy 54.21 on Workplace Speech. This does not provide full legal protection for employees but does help promote free speech in the workplace.
Does the First Amendment apply to workplace speech?
Through the Library Bill of Rights and its Interpretations, the American Library Association supports freedom of expression and the First Amendment in the strongest possible terms. The freedom of expression guaranteed by the First Amendment, however, has traditionally not been thought to apply to employee speech in the workplace. The doctrine of “employment at will” (which is applicable in most states) has meant that just as employees may resign at any time, so too may employers dismiss employees at any time unless the dismissal is for prohibited reasons (e.g., racial or age discrimination). Some employers may believe that if employees were given full rights to free speech on work-related issues, loyalty and discipline would be weakened and the coordination needed for the effective and efficient functioning of bureaucracies would dissolve.
Many court decisions support employers on this issue.
Does this mean I have no free speech rights as an employee?
If you are a government employee, the Supreme Court in Pickering v. Board of Ed., 391 U.S. 563 (1968) applied a balancing test between the interests of a citizen speaking on matters of public concern and the interests of the government as an employer promoting the efficiency of public services. If you are a government employee, and you speak on a matter of public concern, and it doesn’t hamper your employer’s ability to provide public services, then the courts may be on your side.
Subsequent Supreme Court decisions have further defined public employees’ free speech rights on the job. Please see the resource guide for more detailed information.
What about whistle-blowing?
According to Black’s Law Dictionary, whistle-blowing refers to an employee who reports, and may also refuse to engage in, the illegal or wrongful activities of an employer or fellow employees. There are federal and state statutes to protect employees from retaliation for disclosing certain employer misconduct.
Check to see if these statutes apply to your situation.
What about questions of library policy? Do I have free speech rights to speak on internal library matters?
Since the relationship between employee and employer is a contractual one, employee speech is governed by the employment contract, not the First Amendment. The speech environment in a library as a workplace may vary according to the organizational hierarchy and an employee’s place in it, the organizational culture, and the personalities that make up that culture. If you are a member of a union, check your union contract to see if it offers any protection. If you are a librarian who has tenure or an arrangement similar to tenure, check your tenure or reappointment documents.
What are some issues to consider when speaking out on a library policy matter?
Try to know all the facts on the issue and attempt to understand it from your employer’s point of view. Is the issue important enough to you to risk retribution? Assess your place in the hierarchy and know your workplace culture: you may have more job security than you think. If you are in a union you may be protected by your union contract. A tenured librarian may have more freedom to speak out than a new librarian. Library directors may be expected to make their views known to their trustees. Your boss may be more receptive to criticism at certain times than others. Some bosses may be open to disagreement in private but not in staff meetings. Some may prefer a verbal conversation to a written memo. Consult with your colleagues. Do your colleagues agree with you or are you alone? Can you build support among your colleagues for your position? Can you get others to raise the issue for you or can you do so anonymously?Will it be possible to work from within for change? If your convictions are strong enough, are you willing to resign? You will have to exercise your own professional judgment in assessing your workplace environment.
As a library administrator, should I solicit the opinions of my staff on policy and procedural matters?
The fifth tenet of the “Code of Ethics” states “we treat co-workers and other colleagues with respect, fairness and good faith, and advocate conditions of employment that safeguard the rights and welfare of all employees of our institutions.” The eighth tenet states, “we strive for excellence in the profession by . . . encouraging the professional development of co-workers. . . .” For a long time, hierarchical models of organization involving centralized decision making and strict control of information were thought to be the most efficient way to organize libraries. Many current organizational theories and models seek to promote more flexibility, experimentation, and organizational responsiveness.
If librarians and library staff are excluded from discussions on policy and procedural matters, they may become bored, dissatisfied, and disillusioned with their work. They may lose their initiative and ability to envision new ways of providing services. The most creative people on staff may seek opportunities with other organizations. Not soliciting opinions from your staff could actually result in less efficiency for your library, impair your ability to adapt to a changing environment, and impede your ability to provide the best service to your users. Library professionals in leadership positions should encourage discussion on policy and procedural matters, adopt ALA policy 54.21 on “Workplace Speech,” and refrain from actions that result in a chilling effect on employee speech.
If I speak out in the workplace on a matter of professional policy, and my employer retaliates against me, will the ALA support me?
The ALA does not at this time provide mediation, financial aid, or legal aid in response to workplace disputes. Your employer has an array of sanctions that may or may not be imposed on you, including but not limited to: reassignment, passing you up for promotion, passing you up for raises, denying you tenure, passing you up for the best assignments, and ultimately dismissal. If you decide to speak out on a matter involving professional policy, it will be a matter between you and your employer. The ALA does administer the LeRoy C. Merritt Humanitarian Fund, which has provided financial assistance for librarians who have been discriminated against or denied employment rights because of their defense of intellectual freedom, including freedom of speech.
More information on the fund can be found at www.merrittfund.org.
Where can I find more information?
Questions about “Speech in the Workplace” can be directed to the Committee on Professional Ethics c/o the Office for Intellectual Freedom, ALA, 50 E. Huron St., Chicago, IL 60611.
The following sources were consulted in compiling this Q&A and provide further information on this issue:
Code of Ethics of the American Library Association, statements of guidance for library professionals; see especially tenets I, II, and V.
ALA policy 54.21 Workplace Speech: “Libraries should permit and encourage the full and free expression of views by staff on professional and policy matters” (section 2).
“How Free Is YOUR Speech?” a skit written by the Committee on Professional Ethics
Library Bill of Rights, especially tenets III and IV.
The Universal Right to Free Expression (part 2, section 2.21).
Legal Cases and Analysis
In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that when public employees make statements pursuant to their duties, the First Amendment does not protect the employee from discipline imposed by the employer. See Krystal LoPilato, “Garcetti v. Ceballos: Public Employees Lose First Amendment Protection for Speech within Their Job Duties,” Berkeley
Journal of Employment and Labor Law 27 (2006): 537.
For a general overview of the legal precedents governing public employees’ free speech rights, see the following:
“Exploring Constitutional Conflicts: Free Speech Rights of Government Employees,” www.law.umkc.edu/faculty/projects/ftrials/conlaw/publicemployees.htm.
David L. Hudson Jr., “Balancing Act: Public Employees and Free Speech,”
First Amendment Center, First Report Series, December 2002,
For additional legal reviews and analysis, see the following:
Emily Holmes Davis, “Protecting the Marketplace of Ideas: The First Amendment and Public School Teachers’ Classroom Speech,” First Amendment Law Review 3 (Spring 2005): 335.
William W. Johnston, “Insurrection or Duty: When Government Employees Speak,” Texas Review of Law and Politics 4 (Spring 2000): 489.
Jennifer Elrod, “Academics, Public Employee Speech, and the Public University,” Buffalo Public Interest Law Journal 22 (2003/2004): 1.
Jeffrey A. Shooman, “The Speech of Public Employees Outside the Workplace: Towards a New Framework,” Seton Hall Law Review 36 (2006): 1341.
Randy J. Kozel, “Reconceptualizing Public Employee Speech,” Northwestern University Law Review 99 (Spring 2005): 1007.
Keith G. Munroe, “Focus: Constitutional Protection: Freedom of Speech and Public Employees,” Nevada Lawyer 8 (January 2000): 10.
Andre G. Travieso, “Employee Free Speech Rights in the Workplace: Balancing the First Amendment against Racist Speech by Police Officers,”
Rutgers Law Review 51 (Summer 1999): 1377.
For an article about library organizational culture with references to articles on organizational theory, see Brian Quinn, “The McDonaldization of Academic Libraries?” College and Research Libraries 61, no. 3 (May 2000), www.ala.org/ala/mgrps/divs/acrl/publications/crljournal/2000/may/quinn.pdf.
Two discussions of the issue as it relates to libraries are Tim Wojcik, “The First Amendment In-House: A Librarian’s Work in Practice,” About.com
Librarians and Library Science (accessed February 6, 2007), http://web.archive.org/web/20000829202611/http://librarians.about.com/careers/librarians/library/weekly/aa060900.htm; and Lillian N. Gerhardt, “Ethical Back Talk: V,” School Library Journal 36 (October 1990): 4.
Engineers sometimes face their own variation of this issue. See IEEE Ethics
Committee, “Guidelines for Engineers Dissenting on Ethical Grounds,” www.ieee.org/web/aboutus/ethics/dissent.xml.
See also American Association of University Professors, “1940 Statement of Principles on Academic Freedom and Tenure,” www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm.
For general treatments, see the following:
Richard Lippke, “Speech, Conscience, and Work,” Social Theory and
Practice 18, no. 3 (Fall 1992): 237–58.
Mike W. Martin, “Professional Autonomy and Employer’s Authority,”
in Profits and Professions: Essays in Business and Professional Ethics
(Clifton, NJ: Humana, 1983), 265–73.
Adopted by the ALA Committee on Professional Ethics, July 2001; amended January 2004; June
26, 2006; and January 24, 2007.