A. Facts of the Case
Raytheon Corporation is a large corporation that builds military equipment for the United States army. The company hired Lawrence Korb as the vice president of its Washington office. Prior to this appointment, Korb was a former assistant secretary of defense, and had several contacts within congress and the Department of Defense. He routinely worked with these contacts when he began working for Raytheon.
In December 1985, Korb became a board member in the Committee for National Security with the permission of Raytheon. During one of its press conferences, Korb delivered a speech while on his lunch break. He was under the impression that since he was in his lunch break, he could make comments that would reflect his own personal opinion and not of the company. The following day, a newspaper article appeared describing Korb as a former assistant secretary of defense whom now a private citizen was working for Raytheon. The article went further and stated that Korb was critical of increased defense spending by the government and called for a reduction of the 600 ship, fifteen carrier group Navy.
After the article was published, two Navy officials and a member of the Senate Armed Services Committee called Raytheon to complain about Korb’s alleged remarks in the article. Air Force members also called the company to complain. The company threatened to fire Korb unless he wrote a letter to the editor of the newspaper to clarify his stance on defense spending. The Washington Post published the letter on 4 March 1986 with the heading, ‘We Need More Money for Defense.’ However, the company fired Korb eight days later due to objections from the ASC, Air Force, and the Navy. Korb consequently sued the company for wrongful termination citing the First Amendment of the Constitution and the Massachusetts state civil rights statute.
The issue here is the competing claims between private entities free speech rights. Korb believed that he was terminated by the company because of exercising his right of free speech, which is guaranteed in the First Amendment of the US constitution and Article XVI of the Massachusetts Declaration of the Commonwealth.
Public policy as well as the Massachusetts Declaration of the Commonwealth does not prohibit an employer to terminate employment for an employee who is being ineffective at will. Korb was a lobbyist for the company and was hired solely for using his contacts to further the interests of the company. When he allegedly advocated for scaling back defense spending, he was speaking against the interests of the company that has hired him. The company had a financial stake in advocating for the opposite position. He spoke against the interests of the company and the Raytheon was well within its legal right to terminate his employment.
2. Challenges of Freedom of Speech
The challenge of freedom of speech in this case is that despite the fact that the First Amendment of the country’s constitution and Article XVI of the Massachusetts Declaration of Commonwealth both protect freedom of speech, the fact of the matter is that Korb was hired to be a spokesperson for the company. Regardless of whether Korb believed that he was acting as a private citizen when making the comments, his job was to advocate for the interests of the company in both his official and unofficial capacity as the company’s spokesperson. He spoke against the company’s interests in a public forum, which deemed him an ineffective lobbyist for Raytheon.
In its summary judgment, the Massachusetts Supreme Court affirmed that Korb’s issue did not fall within public policy that seeks to protect the freedom of speech of whistleblowers who speak against their employers’ interests. There is no record of Raytheon attempting to suppress the employee’s speech in order to protect itself from public scrutiny. Furthermore, Raytheon is not attempting to fire the employee in order to deprive him of any benefits stipulated in his contract.
Another challenge understands how First Amendment rights should affect corporations. Courts have rigidly enforced the rule that private corporations are not mandated to respect the freedom of speech of their employees. Some states have begun providing more rights for their citizens in their individual constitutions as was seen in the case Redgrave v. Boston Symphony Orchestra, 502 N.E. 2d 1375 (Mass. 1987) where it was ruled that the Boston Symphony Orchestra infringed on Redgrave’s entitlement to free speech by cancelling her contract (Standler, 2000). The cancelling of the contract had the effect of forcing her not to exercise her constitutional right.
3. Challenges with Freedom of Information
The Freedom of Information Act stipulates that allows for the full or partial disclosure of previously undisclosed information held or controlled by the US government. Challenges facing freedom of information include poor record keeping, delays, high fees, outdated management systems, and poor monitoring of the systems.
4. Challenges with Employment Law
The main challenge with employment law is the employment at will provision. The provision declares that an employer for any reason can dismiss an employee without having any just cause and without warning. However, the reason should not be illegal or discriminatory. Raytheon hired Korb as an at-will employee meaning that it could fire him at any time without reason. The company also showed that it had not acted illegally by infringing on his freedom of speech rights and thus the termination was upheld.
5. Public Perception of Raytheon
The public perception of Raytheon after the press conference and the publishing of the article was that the company through its spokesperson was against increased defense spending. Raytheon had a financial incentive in not advocating for a reduction in defense spending because its main source of income came from selling defense equipment to the military. If defense spending were scaled back, as Korb opined it should, then the company would make less profit or even experience significant losses in its operations.
Furthermore, the Department of Defense is Raytheon’s main client and the department constantly advocating for more money to finance its operations. By publicly commenting that defense spending should be scaled back, Korb, a representative of Raytheon was seen by the department as undercutting its operations, or going behind its back so to speak. The public saw Korb’s public opinion as that of a company that was not operating in the best interests of its main client.
6. Fraud or Misrepresentation
It could be argued that Korb was speaking in his capacity as a member of a nonprofit organization and not in his capacity as a representative of Raytheon. In addition, he made his remarks during his lunch hour, which meant that he was off-duty as the company’s lobbyist. Thus, he was acting as a private citizen remarking on issues of public concern. He could be afforded protection by the constitution if he was a public servant hired by the government.
However, a private company employed him and his remarks went against the company’s financial interests. As such, he misrepresented the company’s stand on defense spending and caused financial harm to the company. He went against the wishes of the company he was supposed to represent.
It could also be argued that since Raytheon receives almost all of its income from conducting business with the government, it has taken on some features of a governmental entity (Standler, 2000). Thus, its dismissal of Korb could be seen as a state action, misrepresenting itself as a corporate entity. With this frame of mind, the company would have been liable of infringing Korb’s fundamental freedom of speech. This argument was successfully used in the Holodnak v. Avco Corp., 381 F, Supp. 191 (1974), aff’d, 514 F.2d 285 (1975), cert. den., 423 U.S. 892 (1975). In this case, a union member was awarded monetary restitution for violation of his First Amendment rights when Avco Corporation violated the ‘just cause’ stipulation contained in the collective bargaining agreement.
7. Additional Court Cases
The Redgrave v. Boston Symphony Orchestra, 502 N.E. 2d 1375 (Mass. 1987) and the Holodnak v. Avco Corp., 381 F, Supp. 191 (1974), aff’d, 514 F.2d 285 (1975), cert. den., 423 U.S. 892 (1975) are examples of court cases that could be used to support my analysis. Another is the case of Pickering v. Board of Education (1968) whereby Pickering, a science teacher, wrote a letter to the local community criticizing the school’s allotment of funds between athletics and academics. The school fired him citing false statements in the letter that cast the school’s integrity in a bad light. The teacher sued the school for violating his First Amendment rights because it terminated him after he exercised his freedom of speech.
Perry v. Sindermann (1978) is another case that can be used to support my analysis. Sindermann was professor at the Odessa Junior College and then he was elected president of the Texas Junior College Teachers Association. Over the years, he had many public disagreements with the board of the college and his contract with the school was not renewed after it expired with the school claiming insubordination on the part of Sindermann (Standler, 2000). The plaintiff sued for wrongful termination, which was not granted as he did not have a reasonable expectation of continued employment and the school had not infringed on his right to free speech.
Standler, R. (2000). Freedom of Speech in USA for employees of private companies. Retrieved on 10/10/2016 from http://www.rbs2.com/freespch.htm