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Briskman v. Akima

Q: Was Ms. Briskman forced to resign for her speech?

A: Yes. Ms. Briskman was forced to resign by her employer, Akima LLC, because it feared that her off-duty, peaceful political protest against President Trump would upset the federal government, Akima’s customer.

Q: Why do private companies have to comply with the Constitution?

A: This lawsuit is about whether Akima violated Virginia employment law.  Virginia employment law prohibits employers from violating the state’s public policy.  And Virginia’s state public policy in favor of political dissent free from fear of governmental retaliation, as reflected in the Virginia Constitution and the First Amendment to the United States Constitution, is violated if a company can terminate an employee to avoid unconstitutional retaliation for free speech.  Both federal and state constitutional law prohibits government retaliation against a contractor based on its employees’ exercise of their free speech rights — so it is not permissible for a Virginia company to terminate an employee in anticipation of unconstitutional government action.

Q: Why would it be unlawful for the Trump Administration to pull federal contracts from Akima?

A: The First Amendment would prohibit the Trump Administration from retaliating against a federal contractor based on the off-duty speech of the contractor’s employees. See O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996).  Statements of protest and dissent, like that Ms. Briskman used, are protected by the First Amendment.  See Cohen v. California, 403 U.S. 15 (1971) (holding that First Amendment protects the right to wear a jacket with the words “Fuck the Draft”). Accordingly, the government may not punish or retaliate against a government contractor on the basis of constitutionally protected speech without demonstrating a legitimate governmental interest. See Board of County Comm’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668 (1996). And the personal political interests of the President do not count as a legitimate governmental interest. See Elrod v. Burns, 427 U.S. 347 (1976).

Q: Why can’t a private company fire an employee who insults or is offensive to its customers?

A: Companies who contract with the government have to comply with a different set of rules. The government isn’t just any other customer.  The Constitution prohibits the government from retaliating against a government contractor for its employees’ off-duty political speech.  Moreover, the government spends our money.  So it’s entirely fair to say that a government contractor cannot fire an employee for off-duty, non-violent, peaceful protests–particularly where the employee did not use the company’s name in any way while protesting.  Indeed, the alternative: the government being able to buy our off-duty political obedience with our tax dollars is downright un-American.

Q: Does this mean that a business couldn’t fire someone if it learned they were a member of the Ku Klux Klan or expressed bigoted views that were offensive to the customers?

A: Expressing disapproval of the president in an off-duty, non-violent, peaceful protest bears no resemblance to hateful and destructive activities of the Ku Klux Klan or other organizations that engage in violence.  And it should go without saying that Virginia law does not prohibit a company from firing an employee who violently threatens people.

When President Trump tweeted a series of attacks on Amazon and threatened to change tax, antitrust and United States Postal Service rules in ways that would negatively affect the company, he knocked more than $55 Billion off its market value. But the danger posed by those tweets, which the writer Adam Davidson correctly referred to as themselves an economic act by the President, is not just to Amazon’s market cap, it’s to our democracy more broadly. That’s because of the signal it sends to every company in the marketplace: praise the President, and the government can boost your business; defy him, and risk your bottom line.

We’ve dubbed this phenomenon “autocratic capture” — that is, the phenomenon of businesses responding to this incentive by making sure to praise the governing regime and quashing or avoiding any dissent. The decision of Ms. Briskman’s employer to force her resignation to avoid any potential business downsides of being seen as insufficiently loyal to the regime is a textbook case of it.

We are not the first country to experience this problem.  Autocratic regimes in Egypt, Hungary, Thailand, Turkey, and Russia all deploy this tool to various degrees. As a result, companies in each of these countries do not hire or do business with known dissenters. That pressure–which makes citizens choose between their pocketbooks and their principles–starts a downward spiral that ultimately dismantles a democracy. And come election time, those companies that do play ball with the regime become the loudest voices promoting the incumbent’s re-election, in full knowledge that they’ll be handsomely rewarded in the marketplace.

Ms. Briskman’s is not the first case of autocratic capture playing out in the United States. When the White House called on ESPN to discipline Jemele Hill, the company suspended her. After relentless pressure on NFL owners from the President, Colin Kaepernick was unable to find a team willing to hire him. If Americans can only keep their jobs when they praise the President, the freedom of speech is lost.

To protect our democracy we must prevent this form of quashing dissent from taking root, and we must stop the spread of autocratic capture. Ms. Briskman was forced to resign for an off-duty, non-violent, political protest, and the justification for her firing would theoretically support the firing of nearly any employee that engaged in a political protest in their private time. Protect Democracy is representing Ms. Briskman to protect the rights of all Americans to express their opinions about government — indeed, to engage in the very act of self-government — without having to choose between their speech and their jobs.

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“President Trump has turned the workplace into a political battleground. It is incumbent on courts to ensure that the debate is not one-sided. Juli’s lawsuit uses Virginia employment law to ensure that employees are not silenced because employers are afraid of the President acting unlawfully.” – Benjamin I. Sachs, Kestenbaum Professor of Labor and Industry at Harvard Law School.

“The Constitution’s Framers added the First Amendment to protect freedom of speech and expression from government censorship and suppression. When a government contractor threatens the jobs of its employees for their peaceful protest against the President, whether that protest takes the form of a tweet or a gesture, we confront a novel form of speech control, but the Freedom of Speech Clause would long since have lost its usefulness if it could be circumvented by finding new ways to punish symbolic dissent. What is at stake is not only the freedom of those working for the government or its contractors to express themselves but the survival of our democratic republic, which can thrive only so long as peaceful protest is fully protected from all forms of government-related pressure, new as well as old.” –  Laurence H. Tribe, Carl M. Loeb University Professor at Harvard.

“Autocrats in the twenty-first century do not need to rely on the heavy hand of the censor or the knock of the secret police to silence dissenters. Instead, we are seeing governments achieve anti-democratic ends by using a combination of nepotism to reward support and economic coercion to punish dissent.”  – Sheri Berman, Professor of Political Science at Barnard College, Columbia University.

“Pressuring companies to silence dissenting employees is an established practice among authoritarians across the world.” – Steven Levitsky, Professor of Government, Harvard University and author of How Democracies Die (with Daniel Ziblatt).

“While Virginia is an employment at will state, which allows employers to terminate employees for any reason, so long as it is not an unlawful reason, Virginia courts do limit that doctrine and recognize a cause of action where an employee’s termination violated a public policy enabling the exercise of an employee’s statutorily created right. By forcing Ms. Briskman to resign out of fear for her off-duty, constitutionally protected speech, Akima violated the strong public policy that Virginians may speak on topics of public interest without fear of unlawful retaliation for political speech.”  – Kara M. Maciel, Partner, Conn, Maciel & Carey

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