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The First Amendment Was Never Designed for the Workplace


Although he is no longer employed by Google, software engineer James Damore’s name will always be associated with that of his former employer.

Google fired him on August 7 for writing a 10-page, 3,300-word memo (Google’s Ideological Echo Chamber) critical of the company’s diversity policy. Damore dared to argue that biological differences play a role in the lack of women in tech jobs.

Google CEO Sundar Pichai sent a note to employees that said portions of the memo “violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace.”

In an opinion piece posted late last month at The Hill titled “Extend the First Amendment to the Workplace,” authors Mark Penn and Stephen Ansolabehere argue that Google should not be allowed to fire Damore because the First Amendment should be extended to the workplace.

People who exercise “their First Amendment rights for causes we don’t believe in” and lose their jobs because of it are “absolutely protected by the First Amendment to the Constitution, and Congress could pass no law in any way penalizing any of them for expressing their views.” They lose their jobs “because, in most places in America, there is a myriad of protections against all forms of discrimination and harassment, but no protection for people being fired for engaging in activities protected by the First Amendment.”

In the August Harvard Harris Poll, a collaboration of the Harvard Center for American Political Studies (CAPS) and The Harris Poll, Penn and Ansolabehere report, “The public overwhelmingly believes that it should be illegal to fire people for expressing their views: 85 percent said people should be protected from being fired for their political views, and 70 percent agreed that the broader protections of the First Amendment should be extended to the workplace.” They claim that “a substantial majority of every single demographic group” they tracked “agreed with these propositions.”

They go on to say of the First Amendment,

The First Amendment is a unique social compact in which we as a nation agreed to let people we disagree with express their views without punishment, whether those views are on communism, capitalism, fascism or anything else. Acting on these impulses can get you thrown in jail, but just expressing yourself gives you a protected outlet.

But that compact is rendered meaningless if social media can defeat the First Amendment by creating torrents of negative sentiment and the accepted — even demanded — reaction becomes firing people from their jobs for their views. Because it’s not illegal to fire people over their views in most places, it’s simply easier to get rid of the problem. The First Amendment is being rendered meaningless by the same kinds of mobs it was implemented to hold at bay.

They believe “the public would reaffirm and even extend the principles of the First Amendment in new laws that would bar firings of workers — and even executives — to give renewed meaning to our most basic social compact in the age of social media.”

Penn and Ansolabehere couldn’t be more wrong. The First Amendment was never designed for the workplace.

The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

Notice that “Congress” is the first word in the First Amendment, not “Google” — or “Apple” or “Microsoft” or “ Walmart.” Notice also that the First Amendment doesn’t say that Congress shall grant the freedom of speech; rather, it prohibits Congress from interfering with it.

The Constitution was ratified in 1788. In Article I, Section 8 of the Constitution, Congress is granted certain limited powers. Abridging the freedom of speech is not one of them. Nevertheless, the Bill of Rights — of which the capstone is the First Amendment — was added to the Constitution in 1791 at the insistence of the Anti-Federalists. The First Amendment, like the entire Bill of Rights, does not grant Americans any rights. It prohibits the government from infringing the natural rights that Americans already have. The First Amendment merely reinforces the idea that the federal government lacks the authority under the Constitution to abridge Americans’ existing freedoms to exercise their religion, speak, publish, assemble, and petition.

Originally, the Bill of Rights — and hence the First Amendment — didn’t even apply to the states. Many of the states had established religions before and after the Constitution was adopted. James Madison — the Father of the Constitution — proposed in his introduction to the Bill of Rights that the following sentence be inserted between Clauses 1 and 2 of Article 1, Section 10: “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” It was not until the rise of the incorporation doctrine in the twentieth century that the Fourteenth Amendment was viewed by the Supreme Court as incorporating most portions of the Bill of Rights and making them applicable to the states.

But a corporation, a company, or a business is not a state. The First Amendment was never intended to apply to any entity other than the federal or state governments. To say that it should apply to the workplace is sheer lunacy.

Does an employee of Coca Cola have the First Amendment right to praise the taste of Pepsi while on the job?

Does an employee of a Ford dealership have the First Amendment right to point out the superiority of Chevys while on the job?

Does an employee of the Democratic National Committee have the First Amendment right to promote the Republican Party platform while on the job?

Does an employee of a Jewish community center have the First Amendment right to recommend the Catholic faith while on the job?

Does an employee of the Future of Freedom Foundation have the First Amendment right to promote socialism while on the job?

Applying the First Amendment to the workplace is like someone’s entering his neighbor’s home and pulling out a gun and appealing to the Second Amendment for his right to do it.

In a free society, no one has the right to any particular job no matter how qualified he is, how much experience he has, how talented he is, how much education he has, how much seniority he has, how much skill he has, or how much knowledge he has.

In a free society, employers have the right to fire employees for any cause or no cause without any legal ramifications or repercussions whatsoever, as long as no employment contract or agreement is violated.

In a free society, employers have the right to discriminate in hiring or firing on the basis of race, religion, sexual orientation, gender identity, disability, appearance, national origin, political beliefs, or anything else.

In a free society, employers make the rules for workplace speech.

In a free society, the government does not interfere in any way with the employer-employee relationship.

In a free society, employers have the right to sacrifice employees to appease the gods of political correctness.

In a free society, Google has the right to fire James Damore or any other employee for any reason. That doesn’t mean that Google did the right thing or that the claims Damore made were false. But it does mean that the First Amendment was never designed for the workplace. Defenders of Damore and free speech err in their conception of the First Amendment.

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