The New York Times has this report on the Fourth Circuit's opinion from last week in Dixon v. Coburg Daily, regarding the "First Amendment" rights of the employee who displated a confederate flag symbol at work.
I still think this was a bad decision, the First Amendment issue which gets the headlines is not reached if the removal was wrong, and I think it was. The First Amendment issue came down against the employee's displaying the symbol of the Confederacy as protected speech in the workplace setting, which certainly seems like the right conclusion, but I can't get over applying the First Amendment to private employers.
One of the first cases I ever worked on had to with whether an employee who said to the head of the company, "you're full of _ _ it," had engaged in misconduct that would deprive him of entitlement to unemployment benefits after the company fired him. Of course, there are some protected speech rights in the workplace under the National Labor Relations Act, and I think the circuit court judge in the case suspected that the claimant's termination was the product of some kind of anti-union animus. I can imagine the claimant in that unemployment case also saying that it was a violation of his First Amendment rights, and the employer having to justify its actions.
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