The Right to Remain Silent

As Ozzie Guillen learned the hard way, freedom of speech does not immunize an employee from saying things that are damaging to the company for which he works

Steven A. Adelman

There is an old saying, “Better to remain silent and be thought a fool than to open your mouth and remove all doubt.” Recent events involving the Miami Marlins’ new manager Ozzie Guillen allow us to test this. In the wake of his “I love Fidel Castro” line, there has been much discussion about what Americans loosely refer to as the right of “free speech.” Since this subject has come up before regarding venue employees and students’ right to say and post things, let’s see what that right really is.

We begin where most rants on this subject begin, with the First Amendment to the United States Constitution. Here is what it actually says:

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.

Congress shall make no law? Why, this doesn’t say anything about the right of a professional sports team to make rules “abridging the freedom of speech” of club employees, does it? To anyone venting about the Marlins trampling on their manager’s rights as an American, I say, Read the Constitution – then be quiet.

What about Mr. Guillen’s employer? Do they have the right to suspend him for five games, or even to fire him, just for his words? Of course they do. Why? Because they are his employer, a private company for which the manager serves at their pleasure. Do the Marlins have the right to be politically correct, if that’s what you want to call not deeply offending Miami’s large population of potential Marlins fans who fled Castro’s Cuba? Yes!1

Do the Marlins have the right to cut an employee loose who hurts their bottom line? Sure! Ozzie Guillen has the same free speech rights that you do relative to your workplace. If you say something that hurts your employer’s ability to sell tickets, licensed merchandise, or personal seat licenses, then you can be disciplined. The only difference for most readers is that Ozzie Guillen has a multi-year contract which the Marlins must honor whether they let him manage or not. Likely you are an employee at-will, meaning that you can be fired for good cause (you do a lousy job) or no cause (they don’t like your hair), just not bad cause (you require an ADA accommodation).

America is, as people say, a “free country.” We are free to speak our minds, to post comments or pictures on social media, to express ourselves in the marketplace of ideas. But these are not unlimited rights. To the contrary, our individual liberties are balanced against the rights of other individuals (which is why you can be arrested for causing a stampede by yelling “Fire!” in a crowded movie theater), and even against the interests of corporate entities like employers.

So Ozzie Guillen can say what he wants, so long as he is prepared to deal with the consequences. Just like all of us. If we all had four-year, $10 million guaranteed contracts.

1 Does the context make “I love Fidel Castro” sound any better? Ozzie’s next sentence was, “A lot of people have wanted to kill Fidel Castro for the last 60 years, but that (expletive) is still here.” In other words, he is impressed with Castro’s resilience, not his politics. On the other hand, the context also includes that the Marlins’ brand new ballpark is located in an area called “Little Havana.”