Freedom not to Listen: A Constitutional Analysis of Compulsory Indoctrination Through Workplace Captive Audience Meetings

Abstract

Workplace captive audience meetings are assemblies of employees during paid work time in which employers compel employees to listen to antiunion and other types of proselytizing. Employers enforce attendance at workplace captive audience meetings by threats of discharge. Typically, employers deny employees the right to ask questions or express disagreement with the anti-union views presented during these mandatory meetings. Soon after the enactment of the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) concluded that workplace captive audience meetings discussing unionization are per se unlawful. However, the NLRB reversed course following the enactment of the 1947 Taft-Hartley Amendments to the NLRA, concluding that employer free speech rights immunize captive audience meetings from regulation. This remains the NLRB's view. In this Article, I demonstrate that employers' First Amendment free speech rights do not preclude a ban on captive audience meetings. Instead, employees are a "captive audience" whom the Constitution protects from being force-fed the employer's religious and political ideology at the workplace. Employers, accordingly, have no free speech right to coerce workplace ideological listening. The scope of employers' constitutional right to free speech as juxtaposed against employees' freedom not to listen is a timely issue. Several state legislatures are considering--and two have enacted versions of-the Worker Freedom Act, which bans workplace captive audience meetings discussing either religious or political matters. Opponents of the Worker Freedom Act have initiated legal challenges that are in the early stages of litigation, and many more such challenges are anticipated as more states adopt the Worker Freedom Act. The employer's alleged free speech rights, as embodied in these meetings, and preemption of state law by the NLRA will be two key issues in this litigation. This Article demonstrates that the resolution of each of those issues will depend on whether the reviewing court acknowledges that employees have a constitutionally-recognized freedom not to listen.