Constitutional Rights

Constitutional Rights Paper:

Free Speech and Privacy Rights: The Elias Group

Business Law/415

August 8, 2005

Introduction

The Elias Group, through research and professional expertise, provides opportunities for businesses (particularly small and disadvantaged businesses) to supply goods and services to U.S. Government entities through the General Services Administration schedules and contracts. The Elias Group is a non-profit organization dedicated to providing information, services and assistance to businesses wishing to contract with the U.S. Government. Two constitutional rights that have an impact on the 31 employees and network of over 100 specialists in this organization are employee privacy and freedom of speech. Due to the erosion of employment at will, employee rights are being expanded by a growing recognition of an employee's right to privacy. Courts have historically distinguished between noncommercial and commercial speech. They have consistently given the highest degree of constitutional protection to noncommercial speech. However, it seemed that commercial speech, such as advertising, enjoyed no First Amendment protection. However, in the mid-1970s the Supreme Court held that purely commercial speech was entitle to some constructional protection. Therefore, only truthful commercial speech was entitled to First Amendment protection. False, misleading or deceptive advertising might be lawfully suppressed; therefore employees of the Elias Group must represent their company truthfully through their advertising. (Barnes, et al, p. 854).

Constitutional Rights

Freedom of Speech

The first amendment of the Constitutional states that "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." The right to free speech also protects implied rights of association and belief. It is the Supreme Court that has been given the task of interpreting the extent of protection that Constitution grants these rights. The right to freedom of speech enables all individuals to express his or her beliefs, and opinions without fear of prosecution. The Supreme Court has decided that the government can prohibit speech that could possibly cause a "breach of peace or cause violence". The right to free speech covers any form of expression that conveys a message (http://straylight.law.cornell.edu/topics/first_amendment.html).

Right to Privacy

The right to privacy is "the possible right to be let alone, in absence of some "reasonable" public interest in a person's activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity [...]" (2004, TheLawEncyclopedia.com.).

Employers want to be sure their employees are doing a good job, but employees don't want their every sneeze or trip to the water cooler logged. That's the essential conflict of workplace monitoring.

New technologies make it possible for employers to monitor many aspects of their employees' jobs, especially on telephones, computer terminals, through electronic and voice mail, and when employees are using the Internet. Such monitoring is virtually unregulated. Therefore, unless company policy specifically states otherwise (and even this is not assured), your employer may listen, watch and read most of your workplace communications.

Impact on Employee

The right to privacy plays a unique role in American Law and society. Although not explicitly protected by the Constitution, it is considered a core value by most Americans. Privacy rights, guaranteeing an individual's right to private life, find their authority in the constitutions, federal and state statutes, and tort law judicial decisions. One issue of primary concern is whether the current law provides adequate protection for the individual's right to privacy in the work place from threats posed by computer technology, electronic eavesdropping, video and sound recording equipment, and databases filled with personal information. Privacy as guaranteed by the U.S. Constitution differs in two significant ways from privacy protected by tort law: (1) the types of acts constituting an invasion of privacy are very different, and (2) the type of protection provided to individuals -constitutional privacy protects against governmental intrusion while tort law primarily protects against invasion by private parties. The Supreme Court has broadly defined privacy as the right of the individual to control the dissemination of information about oneself.

The framers of the Constitution could not address the myriad of privacy concerns that evolved as new technologies proliferated and became a part of an individual's everyday life at home and in thee workplace. The court must continuously be vigilant in balancing the rights of the employee and the employer. A difficulty with the state court privacy decisions is that they have traditionally favored the employer with the effect that employees have had minimal privacy in the workplace. These decisions have focused upon the employer's interest of assuring the work product and protecting against theft and fraud in the workplace. However, The Privacy for Consumers and Workers Act, protects employees by granting them the right to know, i.e., the employee must be given notice, when they are being monitored or recorded electronically by their employer while performing their job.

Freedom of speech does not mean freedom to speak or write a malicious, false statement about another person's character or reputation. In effect, this means that one person's freedom of speech must be balanced with another person's right to be

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