The guarantees the freedom of speech whereas it states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.�

Over the years, the has struggled to determine exactly what constitutes protected speech. Some jurists believe that freedom of speech is unconditional while others believe that the places limitations on speech under certain conditions. The prevailing thought is the latter; whereas it grants a person the right not to speak. For example, declining to salute the flag of the United States as in the case of , 319 U.S. 624 (1943) or to engage in symbolic speech like flag burning as in Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).

In 1989, the United States Congress passed the Flag Protection Act (18 USC § 700) which reads: “Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.� There were several challenges to this act two of the seminal cases are Texas v. Johnson and United States v. Eichman. In both cases, the actors set fire to the United States Flag as a form of protest. The question posed to the United States Supreme Court: Whether or not the First Amendment right of free speech protected their actions? The Court ruled that flag burning is considered protected speech under the First Amendment.

The Court has also been called upon to decide what is not protected speech such as inciting actions that would harm others (yelling ‘fire’ in a crowded movie theater), students making obscene speech during school sponsored events, Bethel School District #43 v. Fraser, 478 U.S. 675 (1986), or to print articles in a school newspaper over the objections of the school administration, , 484 U.S. 260 (1988).

In , Fraser a male student, gave a speech during a public assembly where he nominated another male student, used an “elaborate, graphic and explicit sexual metaphorâ€� aka “Double entendresâ€� which means that he used words capable of two meanings: (1) obvious interpretations (2) subtle interpretation usually sexually suggestive to describe him. Fraser’s speech was as follows:
“I know a man who is firm – he’s firm in his pants, he’s firm in his shirt, his character is firm – but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts – he drives hard, pushing and pushing until finally – he succeeds. Jeff is a man who will go to the very end – even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he’ll never come [long pause] between us and the best our school can be. He is firm enough to give it everything.”

Fraser was suspended for two days and the father filed a lawsuit in federal District Court alleging violates of Fraser’s First Amendment right to free speech. The Court ruled in favor of Fraser. Bethel appealed. The Court of Appeals affirmed the lower court’s decision in favor of Fraser. Bethel appealed to the United States Supreme Court. The Supreme Court ruled, however, that it was appropriate for the school to prohibit the use of obscene and offensive language. Chief Justice Warren Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech and “it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education.â€�

In Hazelwood School District v. Kuhlmeier, journalism students in were in the process of publishing a school-sponsored newspaper. One issue featured stories on teen pregnancy and divorce. The school’s principal thought the stories were inappropriate and prior to the publication, he deleted the two pages containing the stories without informing the journalism students. The students were upset because they had not been given the opportunity to make changes. The students felt their First Amendment rights had been violated, they filed suit in the . The Court sided with the school, ruling that the school had the authority to remove and regulate speech they deemed appropriate. The students appealed the decision to the . The appeals court reversed the lower court, finding that the paper was a “public forum” and that school officials could censor its content only under extreme circumstances. The school appealed the decision to the United States Supreme Court and reversed the appellate court decision ruling that a school does not have to allow student speech if it is inconsistent with the schools’ educational policy.

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Answer: Depends

The () has stated that ‘’ rules for workplace employees violate the law unless they are “reasonably necessary to the operation of the business.� The EEOC further delineates caveats for employers:

• A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
• An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
• Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.

They also note that even if there is a need for an English-only rule, “an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.�

While English-only policies may only be warranted for “business necessity,� some courts and the EEOC take the position that such rules hinder national origin individuals from speaking the language that they are best able to communicate and employers should bear in mind that any English-only policy should not apply to non-work related casual conversation in addition to being uniformly applied regardless of race or country of origin.

The EEOC has filed national origin discrimination lawsuits against employers that have violated the law as in the case of EEOC v. Delano Regional Medical Center (). According to the EEOC, this hospital prohibited employees from speaking their native language while allowing non-Filipino employees to speak other languages such as Spanish. The EEOC further alleged that DRMC management created a for the Filipino employees by targeting them for reprimands in a company meeting that served as a reminder to the workers about the English-only policy, threatened them with audio surveillance to ensure compliance with the company’s English-only policy and encouraged other employees to report on them; all of which caused tension between the Filipino and non-Filipino staff members. In addition, the Commission also alleged that upper-level hospital management failed to investigate or take action against the alleged discrimination even after 115 Filipino employees signed a petition reporting the discrimination and harassment.

When pre-litigation settlement negotiations failed, the EEOC filed the lawsuit and sought compensatory and punitive damages, and an injunction against future discrimination. The case was settled when the hospital agreed to a three-year consent decree that required DRMC to pay monetary relief, the development of strong protocols for handling discrimination and harassment complaints, the hiring of an monitor whose function would be to help the hospital revise policies, procedures as well as conduct and anti-harassment training for staff and additional training for supervisors.

This case should serve as a reminder to employers when devising English-only policies the law should be considered and that targeting employees on the basis of their national origin is illegal. It also should empower employees to report national origin discrimination and harassment to supervisors and/or management rather than accept discriminatory treatment.

If you believe that, you have suffered from arbitrarily applied English-only rules or National Origin Discrimination contact ¸£Àû¼§. in New York. We will review your claim thoroughly, providing you with an outline of possible actions you may wish to take. We are ready to be your voice for justice.

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