PAD525 Week7 Assignment3 -
PAD525 Week7 Assignment3 -
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CONSTITUTIONAL RIGHTS 1 CONSTITUTIONAL RIGHTS Week 7 Assignment #3 Joseph Brown Dr. Udoh E. Udom PAD525 May 25, 2013 CONSTITUTIONAL RIGHTS 2 Korb v. Raytheon Case Analysis In Korb v. Raytheon, the defendant ‘Raytheon’ was a large equipment manufacturing company for the U.S. military. The Plaintiff ‘Lawrence Korb’ was employed by Raytheon as a Vice President at corporate headquarters based in Washington, D.C. According to Masscases.com, in December 1985, Korb joined a nonprofit organization called the Committee for National Security (CNS) in the capacity of an executive board member. Prior to this he was employed as an assistant Secretary of Defense for Manpower with the Department of Defense. In 1986 a press conference held by CNC to release the organization’s annual alternative defense budget, Korb expressed sentiments that criticized defense spending and requested a reduction of the Navy’s 600 ship Fifteen Carrier Group. Subsequently, a newspaper released an article covering the event. In the article, the newspaper identified Korb as a former assistant secretary of defense, now a private citizen working for arms maker, Raytheon Co. The news article went on to details Korb criticisms of the current size and structure Navy’s fleet. As a result of the speech and news article, Raytheon received numerous complaints from military officers and proceeded to fire Korb for expressing false opinions of the company. Raytheon then offered Korb an assignment of lesser importance. Korb considered this new assignment as a demotion and an unconstitutional attempt to silence him. Consequently, Korb declined the position and brought suit against Raytheon for wrongful termination. The rule of law involves the protection of speech under the first amendment. The courts had to consider whether the first amendment protection only applies to the government or if it is CONSTITUTIONAL RIGHTS 3 applicable in the operations of private companies. The courts ruled that the first amendment only guarantees that the government may not make a law abridging the rights of its citizens, but if it is a private company, they can do as they wish and are not covered under the law. Consequently the State Court found that because Raytheon was a private corporation, they reserved the right to fire employees for representing false views of the company. This case showed that in the private sector the same rules don’t apply and that the first amendment cannot protect your speech from the discretion of your employer. Challenges with Freedom of Speech in Korb v. Raytheon Case The Massachusetts Supreme Court abruptly dismissed Korb's claim under the state civil rights statute. They based their decision on the fact that although Korb has a secured right to speak out on matters of public concern, and he also has a right to express views with which Raytheon disagrees, he does not have the right to do so at Raytheon's expense (Masscases.com, 2012). Korb was hired to be an advocate for Raytheon. After he spoke, he lost his utility as Raytheon's advocate. Raytheon therefore determined that, in such circumstances, they were no longer required to pay him to be their advocate. That business decision was not an interference with any secured rights under the first amendment of the constitution. Although Korb is free to express whatever opinions he wishes, his employer, Raytheon does not have to pay him to do so. There is a distinct contrast in the freedom of speech rights of an employee of a private corporation and the freedom of speech rights of an employee of the government. The Massachusetts Supreme Court opinion in the Korb case reminds us of the famous dictum of Oliver Wendell Holmes in an 1892 Massachusetts case that involved a policeman who was a CONSTITUTIONAL RIGHTS 4 member of a "political committee" and who solicited money for that committee. The policeman was then discharged from the police department. The expoliceman petitioned the court for restoration of his employment. The Massachusetts Supreme Court ruled that the petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman (Rbs2.com, 2000). There are few employments for hire in which the employee does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract. The employee cannot complain, because he freely accepts the employment on the terms which are offered to him. Challenges with Freedom of Information in Korb v. Raytheon Case In the United States, freedom of the press and the broader freedom of speech are protected by the First Amendment to the Constitution and are considered fundamental rights of the people. In practice, though, some kinds of speech and publication (e.g., obscenity or violations of copyright) are considered outside the amendment's purview, and others, like commercial speech (advertising or product claims), receive a reduced level of protection. In this case, the Washington Post after hearing complaints of Korb’s public involvement in an antinuclear proliferation nonprofit known as the CNS and his advocacy of reduced defense spending ran an article describing Korb's speech at a press conference as "critical of increased defense spending" (Leagle.com, 2010). Following the publication of the article, several military officials "expressed their disapproval" of Korb's comments. Despite writing a letter of retraction which ran in the Washington Post, Raytheon terminated Korb's position after it continued to receive Navy, Air Force, and Armed Services Committee objections. The freedom of the press protects the CONSTITUTIONAL RIGHTS 5 Washington Post from reprisal despite the fact that their publication of the article promulgated the wide publication of Korbs comments which stimulated the feedback resulting in his termination. Challenges with Employment Law in Korb v. Raytheon Korb was speaking as a member of a nonprofit organization during his lunch hour, not necessarily as a spokesman for Raytheon. A question that comes to mind is does that characterization make Korb's speech, in his role as a private citizen, more worthy of protection? Or does Korb's highprofile position make his connection with Raytheon continuous, even during his lunch hour, evenings, and weekends? Examining this issue further, could one conclude that if Korb wrote a personal letter to his Congressman on a plain sheet of paper (not on company letterhead) that advocated decreased defense spending and made no mention of his employment with Raytheon that he would be protection under the first amendment? The legal answer is that, while Korb might have protection against retaliation by the government, if he was a government employee he is not afforded the same protection if he is employed by a private corporation. The first amendment gives Korb no protection against Raytheon. A fundamental issue that must be address is whether it is right to require a person – as a condition of employment by a private corporation – to surrender the right to express an opinion on a current political issue and actively Raytheon’s Influence with the Department of Defense One can ask whether a company like Raytheon, which receives nearly all of its income from business with the U.S. Government, has taken on some aspects of a governmental entity, so the private employer's termination of Korb's employment could then be considered a state action. CONSTITUTIONAL RIGHTS 6 Such an argument was used successfully in Holodnak v. Avco Corp where a union member was awarded damages plus attorney's fees for violation of his first amendment rights after Avco Corp. violated the "just cause" provision in the collective bargaining agreement (Leagle.com, 2010). While the U.S. Congress could conceivably enact a law requiring that defense contractors – as a condition for receiving government contracts to respect freedom of speech of the contractor's employees, Congress has not enacted such a statute. Alternatively, Congress could enact legislation to establish government organizations to develop and make weapons and other military equipment, and forbid the U.S. military to purchase weapons from private corporations, however no such legislation currently exist. Fraud or Misrepresentation in Korb v. Raytheon Fundamentally, the Korb and the other aforementioned cases present a conflict between: (1) the right of a private employer to have loyal employees and (2) the right of all citizens to actively and sincerely participate in a democracy. If a democratic government is to function efficiently, there needs to be a public discussion of important issues, such as the amount of money spent on defense, before decisions are made. Because of Korb's experience and expertise, they were a particularly valuable participant in this essential public discussion of pending issues before the legislature. I submit that the law should resolve such conflicts by recognizing that active participation in democratic government is a more important public policy than absolute loyalty to a forprofit business, which is definitely not supported by current laws in the United States. Giving participation in democratic discussion a higher value than loyalty to a forprofit business CONSTITUTIONAL RIGHTS 7 should have little effect on businesses that are operating in both a legal and ethical way, as well as contributing to the public good. Other Court Cases In the similar case, Drake v. Cheyenne Newspapers, Inc., Kerry Drake and Kelly Flores, editorial employees at Cheyenne Newspapers, Inc. were fired for refusing to wear a button urging a "no" vote on the unionization of the editorial division. Drake and Flores filed an action claiming the management engaged in a "retaliatory discharge in violation of public policy, breach of covenant of good faith and fair dealing and breach of the employment contract (Masscases.com, 2012). Drake and Flores argued that the right to speech found in the Wyoming Constitution represents an important public policy which the Newspaper violated when it terminated their employment because they exercised free speech. In examining the court precedent, the Wyoming Supreme Court concluded that "terminating an atwill employee for exercising his right to free speech by refusing to follow a legal directive of an employer on the employer's premises during working hours does not violate public policy” (Masscases.com, 2012). As for Drake and Flores' claim for breach of a covenant of good faith and fair dealing, the court found no explicit promise by the Newspaper that they would terminate only for cause. Korb and Drake do not, however, demonstrate an absence of free speech protections at private employers, but merely the limits of such protections. In both Korb and Drake, public policy was mentioned as a possible cause of action. Since Petermann v. International Brotherhood of Teamsters, courts have recognized public policy exceptions to atwill terminations. In that case, the California Court of Appeals held "it would be obnoxious to the interests of the state and CONSTITUTIONAL RIGHTS 8 contrary to public policy and sound morality to allow an employer to discharge an employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute” (Leagle.com, 2010). The Court has rejected for decades now the proposition that a public employee has no right to a government job and so cannot complain that termination violates first amendment rights, a doctrine once captured in Justice Holmes' aphorism that although a policeman may have a constitutional right to talk politics but he has no constitutional right to be a policeman. As ruled in the case McAuliffe v. Mayor of New Bedford, a State may not condition public employment on an employee's exercise of his or her first amendment rights. References Masscases.com (2012). Lawrence J. Kolb vs Raytheon. Retrieved May 23, 2013; from: http://masscases.com/cases/sjc/410/410mass581.html Leagle.com (2010). Korb v Raytheon Co. Retrieved May 24, 2013; from: http://www.leagle.com /xmlResult.aspx?xmldoc=1989770707FSupp63_1756.xml&docbase=CSLWAR219862006 Leagle.com (2010). Holodnak v. Avco Corp., AvcoLycoming d., Stratford, Conn. Retrieved May 23, 2013; from: http://www.leagle.com/xmlResult.aspx?xmldoc=1974572381FSupp191_ 1542.xml&docbase=CSLWAR119501985 Rbs2.com (2000). Freedom of Speech in USA for Employees of Private Companies. Retrieved May 24, 2013; from: http://www.rbs2.com/freespch.htm CONSTITUTIONAL RIGHTS 9
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