Speechless: The Erosion of Free Expression in the American Workplace

Speechless: The Erosion of Free Expression in the American Workplace Bruce Barry Berrett-Koehler Publishers Inc., (2007) Softcover, $18.45 Reviewed by: Frank J. Cavico, Nova Southeastern University Professor Bruce Barry in his book, Speechless: The Erosion of Free Expression in the American Workplace, provides a very well written, succinct yet very substantive, analysis of freedom of speech in the workplace. The author addresses this significant topic from legal, ethical, and practical managerial perspectives. The book consists of nine chapters, in addition to an introduction and conclusion, which cover free speech in the public and private sector workplace. Important subject matters covered are constitutional rights to speech and privacy in the workplace, the employment at will doctrine, civil rights limitations on the employment at will doctrine, and speech in the digital age. The author discusses not only speech in the traditional communication sense, but also speech as a component of the broader interest in free expression, including symbolic expression. Focusing on the workplace, of course, the author explains and provides examples of workplace expression. In the broader discussion of "expression," the author examines the concomitant rights of believing what one wishes and of associating with whom one wishes. The author also discusses privacy issues, such as monitoring and other forms of surveillance as they relate to free speech. In his public sector discussion, the author correctly points out the legal balancing tests that determine whether a government employer can constitutionally restrict employees' speech. He appropriately discusses the key public sector legal test for protecting employee speech, that is, whether the speech concerns an issue of public concern, such as a social, political, or community issue. He also wisely emphasizes that a government employee who thinks he or she was impermissibly demoted or discharged for exercising his or her speech rights can go to court to seek a remedy, but prevailing on a speech claim is another matter indeed. In his discussion of private sector speech rights in the employment context, the author appropriately examines at length the seminal employment at will doctrine. Although there are statutory as well as common law exceptions to the doctrine, such as federal and state civil rights and labor law acts and the common law public policy doctrine, the author properly notes that the employment at will doctrine is still the prevailing legal doctrine in virtually all states in the United States; and moreover he astutely observes that one recurring consequence of the employment at will doctrine is a legal but immoral discharge, for example, for exercising speech that the private sector employer disapproves of. The harsh result of employment at will is that the private sector employee may forfeit his or her rights to free speech upon entering the workplace. In one of the best sections of the book, the author provides an extensive discussion of whistleblowing in the workplace. He discusses federal whistleblowing laws, especially for government employees, and also discusses the whistleblowing provisions under the 2002 Sarbanes-Oxley Act. Furthermore, he discusses whisteblowing protections afforded to private sector employees by state whistleblower protection statutes and pursuant to the common law public policy doctrine. …