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The Journal of Contemporary Legal Issues

Abstract

Employers have long made decisions based on the applicant’s or incumbent employee’s respectability. Those whose transgress the bounds could be excluded; e.g., those who publicly embrace the Ku Klux Klan.[] In other words, frank speech—speech “unconstrained by anything that might normally encourage one to be more circumspect,”[] speech revealing one’s “true feelings, however repellant to popular morality”[]—is not invariably a good thing.[]

When social media came into wide use, employers extended their monitoring of applicants and incumbents for the acceptability of that speech.[] There is nothing new in that.[] In the absence of a clear direction embodied in law that such judgments are not to be made—and some American law does that, as Professor Willborn explores[]—society allows employers, as actors among a multitude of others in civil society, to make judgments of what they believe their or the public’s sensibility disallows even as, given the velocity of change in social norms, those judgments might be idiosyncratic or anachronistic. The question is whether, on what matters, directed to what audiences, and by what turns of expression should that allowance be withdrawn.[]

This paper is part of a Symposium on “Free Speech Beyond The Constitution” published in 27 Journal of Contemporary Legal Issues (2025).

Volume

27

Issue

1

Start Page

1

Faculty Editor

Maimon Schwarzschild & Larry Alexander

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