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Patrick MORVAN

Professeur Agrégé à l'Université Panthéon-Assas

(Droit social - Criminologie/droit pénal - Théorie générale du droit)

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14 janvier 2008 1 14 /01 /janvier /2008 17:16




Patrick Morvan

Professeur (Law Professor) à l’Université Panthéon-Assas (Paris)

1. - According to the First Amendment to the Constitution, "Congress shall make no law (…) abridging the freedom of speech".

In case of a violation of this paramount provision, the Civil Rights Act of 1871, Section 1 (42 USC § 1983), grants a cause of action : "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State (…), subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress (…)".

Moreover, the Fourteenth Amendment (Section 1) establishes that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".

Under the tutelary protection of these constitutional pillars, the Freedom of speech should be firmly guaranteed and worshiped as an absolute principle. But the truth is far from this idyllic vision.

Observing from a distance, the American business corporates and investors watch the European laws treat the private workers to abusively wide protection against managerial power. By contrast, contemplating from the Old continent (except this insular monarchy drifting off the coast, called the UK), America looks like a hell for workers. The doctrine of employment at-will embodies in itself a conservative conception of labor relationships, individual as well as collective, which is fairly unconceivable, at least, in France, Germany or Belgium.

2. – According to professor David C. Yamada, several factors have dramatically curbed private worker’s freedom of expression (1).

First, the decline of unionization. In USA, barely 10 percent of all private-sector employees are union members (this rate is under 8 percent in France). The process of collective bargaining helps to prevent management decisions (arbitrary or not) which are detrimental to employment. In peculiar, a collective bargaining agreement featuring a just-cause provision or some procedural safeguards against downsizing will build up a framework favourable to freedom of expression in the workplace. In general, shop stewards or union-management committees are genuine "hubs" allowing for concerns to be reported to management.

But, in this realm, American legislator and courts support with an equal energy the unions’ freedom of speech as well as the employers’ one to fight the unionization of its personnel and to circulate an anti-union propaganda in the workplace representation elections process (2)...

Second, waves of mass layoffs have made the workers fearful about their job security and have encouraged self-censorship in the workplace. Whatever the economic trends may be, self-censorship is fuelled by an ideological myth in America : the myth of a classless society that inclines workers not to find out the source of their plights in economic forces and in the fundamental inequality with their employer. "The culture surrounding today’s workplace promotes docility, self-censorship and acceptance of hierarchy". Worst, this "culture implicitly turns workers against each other" (3). In Europe, conversely, Marxist critical of liberalism has deeply entrenched a conflictual scheme of labor relationships and has soon determined unions to vindicate new rights and freedoms on behalf of individuals, in order to counterpoise the overwhelming weight of managerial power.

Three, the increasing employer surveillance of the personnel (eavesdropping of telephone conversations, recording of electronic mails, localization of business movings and travellings via GPS devices, individual recording of comings and goings inside or outside the enterprise, by badges, fingerprints or other technological means), summarized in two words, Big Brother, have created a feeling of being constantly monitored in the workplace and incited employees to be more watchful about what they say.

3. - This failure of the freedom of speech sounds quite ironical (if not cynical), for democratic participation and individual fulfilment of workers has become an antiphon in today’s management and economic literacy.

This situation stems probably from American history. The typical nineteenth century American worker is a self-employed farmer or entrepreneur, ignoring the concept of employee rights and holding an agrarian conception of the relationships between an employer and his employee in terms of master and servant. As a result, the rule of at-will employment has become the law of the land (cf. infra).

The enactment of the National Labor Relations Act (NLRA) in 1935 confirmed the preminence of a collective approach of the labor relationships, which lasted until the 1960’s. At this time, the advent of federal employment discrimination laws reinstated the worker as an individual eligible to personal rights.

4. – It is well known that the potential grounds for a free speech protection in the workplace are insufficient. Neither the First Amendment, nor the State Constitutions, nor the National Labor Relations Act, nor the Whistleblower provisions offer an efficient shield to the private employees.

Among all these ‘missing' or 'failing' grounds, we will only focus on the constitutional provsions.

5. – The doctrine of employment at-will mandates that, in the absence of a written contract for a specific duration (that is in case of an indefinite contract), an employee may be fired "for good cause, for no cause or even for cause morally wrong" (4). This doctrine has not be eliminated but notably restrained from the mid-XIXth century by Statutory regulations (antidiscrimination Statutes and substantive statutory regulation providing minimum workplace requirements) and common law exceptions.

The "public policy exception" to the rule of at-will employment creates a cause of action for wrongful discharge when an employer fires a worker for reasons that violate or offend public policy (5). 43 states have adopted (whereas 7 ignore) some form of the public policy exception. There are two other exceptions to the doctrine of at-will employment (the Implied-contract exception, in 38 states, and the Covenant of good faith and fair dealing, in 11 states).

In order to raise the public policy exception, the plaintiff must specify the legal source of the public policy involved, usually tapping into legislation (that is constitutions and statutes), administrative rules, regulations and judicial decisions (6).

6. - Surprisingly, First Amendment proves to be very helpless when an employee files a wrongful discharge claim, alleging that he has been victim of a retaliatory dismissal, as he is only guilty for having expressed himself in the workplace. The freedom of speech offers to private workers a very fragile shelter. Most of the time, the public policy exception doesn’t apply because the Constitution doesn’t supply the wanted material, for two main reasons : the "matter of public concern" is elusive (1st part) and the State action requirement is insurmountable (2nd part).

As a result, "American employees suffer from a lack of voice in workplace decision-making" (7). The employee participation is weak.

1. - The elusive "matter of public concern"

7. – At the beginning, the First Amendment has been used in cases involving government employers, to safeguard the right to the free speech of their employees.

The Supreme Court elaborated the "public concern test" in Pickering (1968) : "the problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees" (8).

8. - But, thereafter, Connick v. Myers (1983) shed a dark light on this balance of interests. The case was involving an Assistant District Attorney who had been terminated for her refusal of a proposed transfer to another office and, more interesting, on the ground of insubordination because she had circulated a questionnaire to her colleagues concerning "office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns". The respondent filed a suit in Federal District Court under 42 U.S.C. § 1983, alleging that she was wrongfully discharged because she had exercised her constitutionally protected right of free speech. The District Court agreed, ordered her reinstated, and awarded back pay, damages, and attorney's fees. The court held that the questionnaire involved matters of public concern.

The Supreme Court reversed this decision : "When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior".

Thus, to fall within the realm of public concern, a public employee's speech must relate to a matter of political, social or other concern to the community. First Amendment protection is unavailable when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest (9).

With all due respect to the Supreme Court, no court in Europe would allege that an employee may act "not as a citizen" : the freedom of speech is a fundamental freedom enshrined in every human being, regardless whether he’s got to perform a job or not and whether he speaks out over matters of public, work-related or personal concerns. In all cases, a balancing of opposite interest has to be realised.

9. – Garcetti v. Ceballos (May 30, 2006) amended (if not buried) Pickering rationale as far as public employees are concerned.

Ceballos, a supervising deputy district attorney, was asked by defense counsel to review a case in which, counsel claimed, the affidavit police used to obtain a critical search warrant was inaccurate. Concluding after the review that the affidavit made serious misrepresentations, Ceballos relayed his findings to his supervisors, and followed up with a disposition memorandum recommending dismissal. Petitioners nevertheless proceeded with the prosecution. At a hearing on a defense motion to challenge the warrant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Claiming that his supervisors then retaliated against him for his memo in violation of the First and Fourteenth Amendments, Ceballos filed a 42 U. S. C. §1983 suit.

The Court found that "When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline". "The dispositive factor here is not that Ceballos expressed his views inside his office, rather than publicly. (…) He did not act as a citizen by writing it" in the course of his duties.

"Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created". There is no support in the Court’s precedents to displace managerial discretion by judicial supervision. "Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions".

Officially, Garcetti v. Ceballos does not reverse First Amendment precedents which protect government employees speech expressed outside and inside the workplace. The ruling applies to speech which is clearly required as part of an employee’s official job duties.

Conversely, Justice Breyer’s dissenting opinion held that the Pickering test should remain fully applicable : "In such an instance, I believe that courts should apply the Pickering standard, even though the government employee speaks upon matters of public concern in the course of his ordinary duties". In fact, the Court were sharply divided.

10. – In Ceballos, the Court looked rather optimistic when stating that "various measures have been adopted to protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions. These include federal and state whistleblower protection laws and labor codes and, for government attorneys, rules of conduct and constitutional obligations apart from the First Amendment".

But, actually, under this ruling, 22 millions public employees have no First Amendment rights and are not protected against retaliation when they are acting in an official capacity and wanting to expose problems to their government employer. It’s just an illusion to think that the network of statutes mentioned by the Court provide a sufficient protection. Ceballos himself had not pursued whistleblower remedies under California law. However, the California Labor Code (section 1102.5) protects both private and public employees from whistleblower activities for reporting violations of Federal and State law and, California Government Code (section 53298) protects both city and county employees from whistleblowing activities relating to gross mismanagement and abuse authority, and California has also adopted its own Whistleblower Protection Act which protects State employees ! This circumstance has an explanation : according to a survey of the National Whistleblower Center (10), 95 % of Whistleblowers states statutes grant a weaker protection than 42 U.S.C. § 1983 (not least because they protect ‘external’ and not ‘internal’ or ‘official’ duty whistleblowers). It’s no wonder that employees, such as Ceballos, regularly chose to file claims under section 1983 instead of under state laws wherein they have lost faith.

This outcome is obnoxious to common sense, having regard to the fact the vast majority of public employees only report their concerns through the chain-of-command, for the sake of their employer who should always be in the know of the problems or violations threatening the activity. From now on, they can be fired for that. Instead, if they go directly to the press, without having the courtesy to report to their supervisor before (and possibly kicking up a stink), they are protected under First Amendment… In a way, Ceballos opinion spurs public employees to go outside the chain of command so that they will be protected : yet, this attitude is fare more disruptive for the employer’s interests.

Besides, recent whistleblowers laws passed by Congress (Sarbanes-Oxley Act (2002) (11) and Aviation Investment and Reform Act for the 21st Century [AIR 21] (2000)(12)) contain specific endorsements of internal whistleblowing. The internal/external distinction is, therefore, outdated. But it throws confusion in the workplace and deters workers to take any risk of reprisal.

This situation is detrimental to the government whose employees are often the first to see the signals of corrupt, waste or incompetent management.

11. – Fortunately, Ceballos sparked a bill as a response. The Whistleblower Protection Enhancement Act (March 9, 2007) was enacted by the House of Representatives.

The bill extends whistleblower protections to federal employees who work on national security issues, strengthens whistleblower rights for federal contractors, clarifies that "any disclosure" (under Federal Whistleblower Statutes) regarding waste, fraud, or abuse means "without restriction as to time, place, form, motive, context, or prior disclosure" and includes "formal or informal communication" (as a response to Ceballos and also to Federal Circuit decisions that had limited the scope of disclosures permitted by federal law). It also provides explicit protections for federal employees who report instances where federal research is suppressed or distorted for political reasons (the Ceballos assumption, again). These provisions are protecting any disclosures made in the ordinary course of a federal employee or contractor’s duties.

Too often, a whistleblower brings his or her case to the Merit Systems Protection Board (MSPB) or the Office Special Counsel (OSC) and the case lingers in limbo or a determination occurs so long after the alleged prohibited practice occurred that the fired employee has been without a paycheck for years. The Act allows whistleblowers access to federal district courts if the MSPB or the OSC do not take action on their claims in a period of 180 days : any circuit is now allowed to hear the case, ending the exclusive jurisdiction of the Court of Appeals for the Federal Circuit (whose decisions have created the need for many provisions of the bill in order to censor its decisions !) over whistleblower appeals.

The Senate's version of the Whistleblower Protection Act was approved by the Senate Committee on Homeland Security and Governmental Affairs on June 13, 2007. But President George W. Bush, citing national security concerns, promised to veto the bill should it be enacted into law by Congress !

2. - The insurmountable State Action requirement

12. - As it has been often recalled by the Supreme Court, since its decision in the Civil Rights Cases (13), the principle has become "firmly embedded" in American constitutional law that "the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States" and "that Amendment erects no shield against merely private conduct, however discriminatory or wrongful".

Likewise, the First Amendment, which prohibits the "Congress" from making law "abridging the freedom of speech", aims only at a State Action likely to infringe upon this civil right. "It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state" (14). 

Generally, the Constitution is a limitation on governmental conduct, not (with the exception of the Thirteenth Amendment's prohibition of slavery) a limitation on private conduct. To use a metaphor, the Constitution doesn’t act horizontally – between private individuals or entities – but vertically – between a private individual or entity and the (Federal) State or any entity embodying the (Federal) State.

13. - The rule goes with some ease, in cases where the action of the government is entwined with the action of the private parties that is alleged to violate constitutional rights ("public function theory"(15), "judicial enforcement theory"(16), "symbiotic relationship" between the State and the private party (17)…).

Likewise, with regard to freedom of speech, under some circumstances, property that is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held.

In Marsh v. Alabama (1946) (18), the Court considered the issue of the First Amendment's applicability in Chickasaw, Alabama, a "company town" owned lock, stock, and barrel by Gulf Shipbuilding). A Jehovah's Witness began distributing religious literature on a street corner. She was told to stop her activity, she refused, was tried and convicted of trespassing. The Court reversed her conviction, concluding that Chicasaw was the functional equivalent of a municipality, the residents citizens of their State and country and that the First Amendment fully applied to expressive activities on the company-owned sidewalks and streets of the town. They have a "public function".

In Amalgamated Food Employees Union v. Logan Valley Plaza (1968) (19), a case at the height of the liberal Warren Court, involving workers seeking to challenge substandard working conditions, the rule in Marsh was extended to protect expressive activity in the parking lot of a suburban shopping complex. The Court reasoned that shopping centers today function much like the downtown business districts of previous eras.

Nevertheless, in Hudgens v. NLRB (1976) (20), concerning a group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center, the Court reversed course and overruled Logan Valley.  The Court noted that, in a case decided in 1972 (Lloyd Corp. v. Tanner), it had limited Logan Valley to speech that related in some way to one of the businesses in a shopping center and found that there was no First Amendment right to engage in anti-war leafleting at a large suburban mall. The Court concluded that the rationale of Logan Valley had been rejected in 1972, and now it was time to overrule it altogether. In conclusion, "the Constitution by no means requires such an attenuated doctrine of dedication of private property to public use". The Court indicated, however, that the company-town situation of Marsh remains one in which it will protect expressive activities even though they take place on private property.

14. - Hudgens has not been the final cut of the film. Many state Constitutions do not contain a State action requirement. Not least, the Article I (section 2, a) of the state Constitution of California reads : "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press". No state action is required and the idea popped up naturally that the state constitutions could step into the breach left by the First Amendment..

As a result, several State supreme courts have concluded that the free speech protections of their own state constitutions protect the right of citizens to engage in expressive activities in the public areas of shopping centers. Most notable is the California Supreme Court's Pruneyard decision, which found constitutional protection for high school students who were soliciting petition signatures (opposing a U. N. resolution against "Zionism") in a private shopping mall, characterized as having a public function.  The Supreme Court unanimously (21) held that a state did not violate the First Amendment (that is the property owners’ speech right), or the Fifth’s Amendment’s Takings Clause, by interpreting its constitution to grant citizens the right of reasonable speech and petition in privately owned shopping malls. But the Court did not address the State action topic.

15. – In all cases, the distinction on which the constitutional law relies on is tantamount to a severe curtailment of the scope of application of the First Amendment. The private actors are quite sure to fail to state a claim under the Federal Constitution.

People spending heir time at privately-owned shopping centers or… private workplaces are deprived of any protection under the First Amendment.

It is a huge difference between American federal law and French or other European laws.

In France, the Declaration of Rights of the Man and the Citizen (Déclaration des Droits de l'Homme et du Citoyen, August 26, 1789), provides in general that

"10.  No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.

11.  The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law" (22).

Any citizen is entitled to state a claim under those constitutional principles, without exception.

Moreover, the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, 1950), in its Article 10, relating to "Freedom of expression", lays down that

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (…)

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".

Although the ECHR only applies to Members States of the Council of Europe (in a vertical direction) and the European Court may only condemn one of these States, all the supreme courts in Europe implements its provisions inside horizontal relationships (in a horizontal direction). The ECHR is fully integrated in domestic law and no subtle distinction is made between the citizens with regard to their fundamental right of free speech.

It is not fundamentally the case in American law since the Supreme Court has turned the "State Action requirement" into a serious impediment to law suits under the First Amendment. Nonetheless, the European law stays very close to the above mentioned Article I (section 2, a) of the state Constitution of California and the others similar provisions in state constitutions. No curtailement of the freedom of speech appears there from.

16. - Hitherto, calls from scholars to revisit the analysis and "hurdle the State Action requirement bar" hasn’t met a large echo (23).

Professor Lisa B. Bengham (24), in particular, has proposed an interesting framework to confer an effective protection to the private employees. She argues that a state court’s involvement in a lawsuit between a private employer and employee constitutes state action : when the state court holds that the Constitution does not protect the speech of a private-sector employee, it denies, as a state actor, due process of law under the XIVth Amendment. In other words, refusing to include free speech in public policy exception and dismiss the employee’s wrongful discharge complaint overshadows the employer’s act of dismissing the employee.

If the argument evokes the precedent Edmundson v. Leesville Concrete Co. Inc. (1991) (25), it cannot be retained in so far as it opens a vicious cycle : if the court joins the private employer as a defendant, it is necessary to find another court to decide the dispute, and this latter will join as well the defendant, and the like ! Moreover, state court is not partaking in the violation of the fundamental right to free speech. It is merely determining whether the First Amendment is applicable or not : this threshold determination, which triggers its jurisdiction, has no causal nexus with the wrongful discharge.

17. - Another approach is likely to apply. In USA, the judicial recognition of a state’s affirmative obligation to protect free speech can be traced to Justice Black’s dissent in Supreme Court opinion Feiner v. New York (1951) (26). According to that theory, the government duty is to protect the workers’ right to talk and sanctioning the employers who threaten to interfere. The rationale is familiar to the European Court of Human Rights when it wants to heighten the efficiency of the European Convention.


(1) David C. Yamada, Voices From the Cubicle : Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace : 19 Berkeley J. Emp.& Lab. L. 1 (1998). It must be said that we have borrowed a lot of ideas to Prof Yamada in the course of this article, in order to describe as accurately as possible the content of American law, for we have, as a French professor, no specific skill in that area.

(2) On this topic (quite astounding for a continental-european lawyer), Kate E. Andrias, A robust public debate : realizing free speech in workplace representation elections : 112 Yale L. J. 2415.

(3) David C. Yamada, n° 11.

(4) Payne v. W. & Atl. R. R. Co, 81 Tennesse 507, 519-520 (1884).

(5) The public policy exception was established in Petermann v. International Brotherhood of Teamsters, 344, P. Ed 25, 26 (Cal. Ct App. 1959), stating that il would be "obnoxioux to the interests of the state ands contrary to public policy and sound morality to allow an employer to discharge any employee (…) on the ground that employee declined to commit perjury". Adde Brockmeyer v. Dun & Bradstreet, 335 N. W. 2d 834, 838-40 (Wis. 1983) : the public policy exception "allows the discharged employee to recover if the termination violates a well-established and important public policy" (ibid., 338).

(6) Dr. Pierce v. Otto Pharm. Corp, 417 A. 2d 505, 512 (N.J., 1980), denying to a physician-researcher the right to refuse to conduct a research on a new drug on the ground of the Hippocratic oath, which cannot be deemed as a source of public policy.

(7) Stephen F. Befort, Labor and employment law at the millenium : a historical review and critical assessment : http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bclawr/43_2/02_TXT.htm.

(8) Pickering v. Board of Educ. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968).

(9) Papaas v. Giuliani, 118 F. Supp. 2d 433 (S.D. N.Y., 2000). For instance, discharge of university professor after he accused a colleague of plagiarism did not violate First Amendment rights (Feldman v. Bahn, 12 F. 3d. 730, 88 Ed. Law Rep. 68 (7th circ., 1993).

(10) The National Whistleblower Center (NWC) is a not-for-profit public interest organization, founded in 1988, which provide the public with information on the laws governing whistleblower protection (web site : www.whistleblowers.org).

(11) See Section 806 (Protection for employees of publicly traded companies who provide evidence of fraud) of the Corporate and Criminal Fraud Accountability Act (CCFA), or Sarbanes-Oxley Act (July, 30, 2002).

(12) 49 USC 42121.

(13) 109 US 3 (1883).

(14) Hudgens v. NLRB, 424 US 507 (1976).

(15) The "public function theory" was established by the Supreme Court in a case of a "park for white people only" (bequeathed by a Senator to a city, as a trustee, on the condition that the park was to be segregated) (Evans v. Newton, 382 US 296). The Court found that "Conduct that is formally "private" may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action" ; "when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations". In the case of Evans, the Equal Protection Clause (XIVth Amendment) applied.

(16) The "judicial enforcement theory" holds that judicial enforcement of private discrimination may constitute state action (Shelley v. Kraemer, 334 US 1 (1948, where state courts of Missouri had been used to evict a black family from a home they had bought in violation of a restrictive covenant, excluding persons "not of the caucasian race", entered into by white owners ; "in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws"). See also Edmonson v. Leesville Concrete Co. Inc., 500 US 614, 618-622 (1991), where the Supreme Court found that a private defense attorney's use of peremptory challenges to exclude black jurors, on the basis of race, in a civil case constituted state action in so far as the use of peremptory challenges was authorized by federal law and there was judicial assistance of the discrimination in the excusing of the challenged juror.

(17) Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) : Eagle Coffee Shop, which served only white customers, had leased its space in a building publicly owned by the City of Wilmington ; the Court found that the presence of a symbiotic relationship between the city and the private discriminators supported the violation of XIVth Amendment. 

(18) 326 US 501 (1946).

(19) 391 US 308 (1968).

(20) 424 US 507 (1976).

(21) Pruneyard Shopping Center v. Robins, 447 US 74 (1980).

(22) Original version (French) : Art. 10 : « Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l'ordre public établi par la Loi ». – Art. 11 : « La libre communication des pensées et des opinions est un des droits les plus précieux de l'Homme : tout Citoyen peut donc parler, écrire, imprimer librement, sauf à répondre à l'abus de cette liberté dans les cas déterminés par la Loi ».

(23) Not least, Terry Ann Halbert, The First Amendment in the Workplace : An Analysis and Call for Reform, 17 Seton Hall L. Rev. 42, 70 (1987). - Lisa B. Bingham, Employee Free Speech in the Workplace : Using the First Amendment as Public Policy for Wrongful Discharge Actions, 55 Ohio ST. L. J. 341 (1994).

(24) Lisa B. Bingham, supra.

(25) Edmonson v. Leesville Concrete Co. Inc., see note 16.

(26) Feiner v. New York, 340 US 315 (1951). See Kate E. Andrias, n° 2461.





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