Viewpoint-based protections for private employees

[Volokh, Eugene]

	I've gotten more and more interested in what I call
"extraconstitutional speech protections" -- speech protections imposed
by state or federal statute, state common law, or state constitutional
amendment, beyond those required by the First Amendment.  Some of these
protections aim to protect speakers against retaliation by private
institutions, such as private employers.

	One recurring question is whether the government may create such
protections in ways that turn on speakers' viewpoints.  For instance,
Weigand v. Motiva Enterprises, 295 F. Supp. 2d 465 (D.N.J. 2003),
involved an employee's claim that a private employer's firing him for
his off-the-job speech -- there, sales of various racist and neo-Nazi
materials -- violated New Jersey public policy.  The court held that
even if New Jersey had a public policy generally barring most firing
based on off-the-job speech, such a policy wouldn't apply in this case
because (1) the speech is "commercial speech" (probably not quite right,
since the sales and promotion of speech products has generally been
treated more as fully protected speech rather than falling into the less
protected "commercial speech" category), (2) the Pickering balance would
apply to any such firing-based-on-speech tort and here the balance would
cut in the employer's favor (likely correct), and (3) "even if the
speech was protected by the First Amendment, it was sufficiently
virulent and odious that 'clear public policy' did not require an
employer to ignore its effect on the community," because it "is hate
speech."  

	I may be mistaken -- the court's reasoning is not crystal clear
here -- but it seemed to me that the court's decision did rest partly
not just on a general Pickering balance (this speech is in fact likely
to be disruptive, so I'll decline to find any public policy violated in
firing based on the speech).  Rather, it also related on a judgment that
"hate speech" is "virulent and odious" (normatively bad and not just
descriptively disruptive) and therefore should not be entitled to any
protection under a discharge-in-violation-of-public-policy tort.  Had
the court expressly recognized a discharge-in-violation-of-public-policy
tort under New Jersey law, that tort would have had a "hate speech"
exception.

	So let me pose, given this, three hypos:

	(1)  State law -- whether statutory or common law -- bars
private employers from firing employees based on their speech, subject
to some limitations (e.g., a Pickering-like balance) but also with a
categorical exclusion for firings based on racist speech.  (There are no
such state law rules now, though about 10-15 jurisdictions do
presumptively bar private employers from firing employees based on at
least certain kinds of employee speech.)

	(2)  State law gives tenants and condominium owners the legal
right to fly the American flag, notwithstanding the objections of their
private landlords or owners' associations.  (Several states have such
laws.)

	(3)  Title VII bars discrimination based on race, color, sex,
religion, and national origin, but specifically provides that the ban is
not applied to "any action or measure taken by an employer ... with
respect to an individual who is a member of the Communist Party of the
United States or of any other organization required to register as a
Communist-action or Communist-front organization by final order of the
Subversive Activities Control Board pursuant to the Subversive
Activities Control Act of 1950."  (This is in fact the law, though note
that this is somewhat different from items 1 and 2, since Title VII's
purpose is to constrain private entities' race/sex/etc. discrimination,
and not private entities' ability to restrict speech.)

	Are these constitutional, on the theory that the government may
provide extra protection to speech even in viewpoint-based ways?  Or are
they unconstitutional, on the theory that any such extra protections
must generally be viewpoint-neutral?

	Eugene