Free Speech Meets Business Interests
Email is the most efficient broadcast system. One click and the reach is global. For some, that's a huge business opportunity. For others it's an abuse. Several recent cases illustrate the inherent conflict.
Judy Olian
(Judy Olian is Dean of Penn State's Smeal College of Business and a leading expert in strategic human resources management.)
Email is the most efficient broadcast system. One click and the reach is global. For some, that's a huge business opportunity. For others it's an abuse. Several recent cases illustrate the inherent conflict.
The first occurred in early October at Eastman Kodak. The company championed "National Coming Out Day", and a supervisor used email to encourage support for gay, lesbian, bisexual and transgender employees who might choose to reveal their sexual orientation. One employee, Rolf Szabo, responded to the supervisor's email, "please do not send this type of information to me anymore as I find it disgusting and offensive." Szabo then hit the return key, broadcasting his response to 1,000 other employees on the original email recipient list.
Eastman Kodak fired Szabo, an employee with 23 years tenure, because he refused to sign a note of apology for his mass email. The company's stated rationale for the firing was not Szabo's personal opinion, but that his broadcasted communication might create a hostile work environment. Since his firing, the case has drawn the attention of conservative Christian groups who are considering filing suit on Szabo's behalf in defense of his right to free speech.
Varian Medical Systems in California won a $775,000 judgment against two former employees who had defamed and misrepresented individuals at the company. The ex-employees had posted thousands of email messages accusing managers of a multitude of sins, from sexual affairs and homophobia, to lying and criminal behavior. The jury's decision has been stayed temporarily until a higher court decides whether to uphold the financial penalty.
And in the most watched Internet-related case regarding free speech at work, Ken Hamidi's battle with Intel has reached the California Supreme Court. After being fired by Intel, Hamidi retaliated by sending mass emails to Intel employees, alleging discriminatory employment practices by the company. Hamidi's emails were directed at up to 35,000 Intel employees and flooded the company's email system. Intel sued Hamidi on grounds of email trespassing, using a common-law concept from centuries ago called "trespass to chattels". Hamidi's legal rejoinder is that he is exercising his right to free speech. A decision is expected in 2003.
In each of these cases, employees were at odds with the actions of their employers, and expressed these differences of opinion. Freedom of expression? Yes, but...
What sets these examples apart is the scale of the expressions of opinion, magnified because of the multiplier effect of email. Szabo's response was returned not to his supervisor, but to the 1,000 employees who were passive bystanders in this email exchange. The two Varian ex-employees posted thousands of messages that included disparaging and baseless assertions. Hamidi's emails clogged the in-boxes of up to 35,000 Intel employees. I doubt seriously whether any of these cases would have appeared on the radar screens of senior executives or lawyers, but for that multiplier effect. While these cases evoke legal principles, they also constitute major management problems. The consequences of a tidal wave of misinformation, reputational damage, or information system failure can be serious or even devastating to a firm and to individual managers.
However, the issue is muddied because some of the same players who seek curbs on email propagation because of objectionable content or misuse of employers' proprietary channels, react in horror and indignation to restrictions on other forms of email communication. Case in point: e-marketers who use mass mailings over the Internet to reach targeted users. They call it marketing, others see it as spamming or even infringement on their privacy. And the banner under which these battles are fought by the e-marketers is—you guessed it—free speech.
The Hamidi case will be the first at a higher court level to test the principle of freedom of expression against a company's right to protect it's cyber-property lines. Other cases will pit free speech against a company's interest in barring communications that may be hostile, discriminatory, or defaming. When our forefathers framed the Constitution, did they foresee protection of speech that can multiply without bounds?
Inside a company and regardless of the closeness and informality of the employment relationship, it is prudent to set policy that limits written communication, including email, to business-related purposes and requires language that is respectful, non-discriminatory, and protective of proprietary information. In addition, the policy should confine email distribution lists to a 'need to know' basis. Automatic mass distribution should be discouraged. Given such policy, companies will have consistent and public criteria to discipline employees if the cause is inappropriate email communication.
But the conflict won't stop with good policy. The Internet offers innumerable business and social advantages that we have yet to fully understand or exploit. These opportunities will come with inevitable challenges, and even imperfections and faults. Today's challenge is to the boundaries and robustness of free speech in the workplace, while safeguarding legitimate employer interests and rights. It's an imperfect choice so far.
