When the Wyoming Supreme Court ruled employer rights trump free speech

Does the First Amendment actually protect free speech? Most Americans think so. In many instances, including my personal experience, I know that it doesn’t.

Comedian Jimmy Kimmel’s comments on his late-night talk show about MAGA’s reaction to the assassination of conservative leader Charlie Kirk sparked the latest national controversy over the First Amendment.

I’d like to take readers back to 1994, when free speech was part of my lawsuit against Cheyenne Newspapers Inc. after I was fired for refusing to wear an anti-union button during our newsroom’s attempt to unionize. (If you’d like to learn more about the case, you can read this earlier column.)

Free speech was part of my complaint against the company, because the right to wear a button to express any opinion has long been recognized as protected under the First Amendment. Co-plaintiff Kelly Flores and I were expressing the right not to wear a button that expressed an opinion we did not share with the company’s management.

While we were silent, our message was clear: that’s free speech too. 

I still maintain that both the U.S. and Wyoming constitutions protected us. The former, though, is often interpreted by the public as the right to say anything, with exceptions for speaking to incite violence or cause other harm. But that’s not always how it works.

Despite the First Amendment saying, “Congress shall make no law … abridging the freedom of speech,” our case was rejected by a federal court in Cheyenne. 

But the story doesn’t end there. Because the Wyoming Constitution also offers free speech protection for the public and the press, our lawsuit was transferred to the state district court in Gillette.

We got our hopes up because the Wyoming Constitution says, “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.”

While Wyoming is a right-to-work state where an employer can fire an at-will worker without cause, workers can’t be fired for discriminatory or retaliatory reasons. I believe suspending workers without pay for a month and then terminating them for not wearing a button is textbook retaliation!

But the judge still ruled in the newspaper’s favor. We appealed to the Wyoming Supreme Court, which heard our case. In fact, because it was an intriguing civil lawsuit, the high court decided to hold the hearing at the University of Wyoming College of Law so students could attend.

One of the justices, Larry Lehman, asked what I considered the best question that day: Does an employer have the right to demand a worker have a swastika shaved into the hair on the back of his head? In other words, does that demand reasonably go beyond the scope of firing a worker for not complying with management’s order in an at-will state?

The question took me — and the newspaper’s attorney — by surprise. All I remember is that he stammered throughout his response and never actually answered the justice’s question. I thought this would work to our benefit.

But apparently, the correct answer was yes, you can demand an at-will employee to wear a button or swastika or anything else without violating the worker’s free speech rights. When the Wyoming Supreme Court ruled several months later, it voted 5-0 to uphold the lower court’s decision.

Guess who wrote the opinion? Justice Lehman.

Here’s one of his conclusions: “Terminating an at-will employee for exercising his right to free speech by refusing to follow a legal directive of an employer on the employer’s premises during working hours does not violate public policy.”

Lehman added “that irony exists in this case because the employer purports to be an advocate for free speech.”

One of the reasons I decided to sue for wrongful termination is I wanted to establish there are limitations to what companies can ask an employee to do without violating their free speech rights. Wearing a button totally against my belief that workers have the right to form a union to collectively bargain was the ideological sword I was willing to die on.

I must admit I was devastated when I lost the case, and it shook my faith in the fairness of the justice system and its interpretation of the First Amendment’s protection of free speech. 

But losing didn’t break me, and I’ve continued my journalism career for more than three decades. I was confident none of my employers would order me to do something against my principles, and that’s proven true.

I want to stress that I hold no ill will against the Wyoming Tribune Eagle, a paper I proudly worked at for 18 years. The management team responsible for my leaving left long ago, and publications owned by Cheyenne Newspapers Inc. were sold to a different publisher. 

The Tribune Eagle has an excellent editor, Brian Martin, who has the wisdom to regularly run my WyoFile column, which helps me stay in contact with long-time Cheyenne readers from my days as an editor of the Wyoming Eagle. I greatly appreciate his support.

And the Tribune Eagle now has a union. I’m happy I was part of that fight.

About a year after Drake v. Cheyenne Newspapers Inc. was decided, an attorney friend attended a legal conference in California. After a particularly boring run-down of recent cases, a lawyer offered what he called “some comic relief.”

Of course, he was referring to my case. I feared that the discussion might be about the lawsuit being frivolous or not pertinent to the issue of free speech. But the speaker explained that Wyoming is one of the most anti-worker states in the nation. I agree.

He detailed the case and said that in any other state, Flores and I probably would have won. My interpretation: We had the misfortune of being fired in an anti-union state where the highest court did not respect the Wyoming Constitution’s guarantee of free speech for all citizens.

I still believe in the First Amendment. But don’t count on it being a lifeline to your employment.