By: Elizabeth Lyon
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
In Arkansas, the First Amendment right to free speech does not protect employees from getting fired for the things we say when we are not at work (unless we work for the government). The threat of losing our jobs for speaking freely in our free time currently prevents many Arkansans from participating in robust public policy discussions. However, an examination of laws in other states provides many examples of statutes Arkansas could enact to improve the quality of our civic engagement by unmuzzling private employees. Many states prohibit employers from retaliating against employees for off-duty lawful activity. Another option is to enact a statute extending freedom of speech protections to private employees. At the very least, Arkansas should join the states who prohibit private employers from discriminating against employees based on their political activities.
It is particularly important to protect the speech of private employees who have special expertise in areas of public interest. Many of the most service-motivated people work for private nonprofits like hospitals, charities, and churches that directly serve the people whose lives are disrupted or threatened by harmful public policy measures. However, since nonprofits rely on private foundations and corporate donors for a substantial portion of their revenue, nonprofits have to be very careful not to upset their donors if they want to keep their doors open. As three U.S. Congressmen have accurately observed, “If an employee of a nonprofit organization voices political opinion against the wishes of donors, the employee or nonprofit can restrict that speech according to donor demand.” Therefore, certain nonprofits have implemented strict limitations on the speech of their employees to ensure that donations do not dry up. When these experts are silenced, it might be years before anyone who is not on the front lines begins to notice the problems, and decades before public policy begins to address the underlying causes.
One example of this censorship in action recently occurred at the Hunger Relief Alliance (HRA), a Little Rock nonprofit under the executive directorship of Kathy Webb, who also serves on the City of Little Rock board of directors. The HRA was incorporated by the Arkansas Foodbank Network, a local affiliate of Feeding America. Feeding America is a national nonprofit whose current CEO is Walmart’s former executive vice president of finance and treasurer, Claire Babineaux-Fontenot.
In July 2020, while the United States was struggling to develop an effective response to the COVID-19 pandemic, the Hunger Relief Alliance promulgated a new internal policy prohibiting its employees from mentioning Walmart and Tyson (two major Feeding America donors headquartered in Arkansas) on their social media accounts without prior, written permission. The policy reads:
- Supporters, partners or donors of the Alliance should not be cited or obviously referenced without their approval, an employee should not identify a supporter, donor or partner by name without written permission . . . .
- Violation of this policy can lead to discipline and possible release from your employment. . . .
When HRA staff asked, “Are there examples of posts we’ve made in the past that have concrete negative impacts on our funding or work?” the official response from HRA was, “Posts that disparage Walmart and Tyson.”
Tyson Foods is the Springdale, AR meat packing company who, in April 2020, drafted President Trump’s executive order requiring meat packing plants to remain open despite COVID-19 outbreaks in the plants. Under this executive order, Tyson and other meat packing plants maintained shoulder-to-shoulder working conditions that caused deadly COVID-19 outbreaks among their workers, and many even received USDA line speed waivers to force an increase in working speed during the height of COVID-19.
According to a USDA study of COVID-19 in meat packing plants, “[p]hysical proximity of workers [was] nearly three standard deviations higher in the meatpacking industry compared to other manufacturers” during the early months of the pandemic. Until the meat packing plants implemented safety measures in the summer of 2020, “COVID-19 cases in meatpacking-dependent rural counties in mid-April 2020 were nearly 10 times higher than in other areas that depended on other manufacturing industries.” Thus, Tyson’s executive order likely caused many Arkansas workers who were required to quarantine due to exposure, workers who caught COVID-19, and family members of workers who died from COVID-19 to experience “starvation” due to dangerous working conditions at meat packing plants during the COVID-19 pandemic, according to Magaly Licolli, the cofounder of Venceremos.
HRA staff are well-educated, experienced, passionate, and dedicated to solving the problem of food insecurity in Arkansas. The Hunger Relief Alliance accurately describes itself as “…becoming the ‘go-to’ authority on hunger issues in Arkansas.” Therefore, it would have been surprising if HRA staff did not criticize Tyson’s decision to draft the executive order that forced so many working Arkansans into these starvation-inducing working conditions. However, under threat of losing their jobs, many of the Hunger Relief Alliance’s experts on addressing food insecurity in Arkansas were not allowed to tell the rest of us how Tyson and Walmart were causing poverty and food insecurity, or to publicly pressure Tyson and Walmart for meaningful change. Their strategic silence – purchased with a tiny percentage of these companies’ profits – creates the illusion that the Arkansans whose job it is to be experts on food insecurity approve of the corporate conduct that created the problem in the first place.
Fortunately, Arkansas is not a company town. We have the power to implement legislation to open the lines of communication between front-line experts and policymakers who can actually fix the underlying problems these experts discover. Enacting statutes protecting the political speech of private employees will raise the level of political discourse on every issue currently challenging our state.
Author’s Note: Hunger Relief Alliance CEO Kathy Webb was contacted for a comment or clarification two days prior to publication of this piece, and she did not respond.