For those who think the First Amendment is a civil-liberties security blanket that goes everywhere they do, Bruce Barry has some unpleasant news in Speechless: The Erosion of Free Expression in the American Workplace. Barry, a Scene contributing writer and professor of management and sociology at Vanderbilt, argues that free speech on the job has never been more than minimally protected against retaliation from the boss, and a long string of state and federal court decisions has blocked attempts to improve the situation for employees. This quashing of expression in the workplace is becoming a more serious threat to democracy and civil society, Barry says, as Americans’ working lives become less separable from their private lives, and as greater job insecurity makes them more fearful of the consequences of employer disapproval.

What the Constitution actually guarantees is speech free of government interference. If you want to denounce George Bush as a pinhead and a war-monger, you’re free to do so without fear of being jailed. “But the flip side,” says Barry, “is that personal expression is safe only from government interference.” Which means—especially if you work, say, for Halliburton—you’d better not try the same thing in the hallway outside your boss’s office: “Our system of constitutional law generally fails to protect civil liberties, including free speech, from actions that threaten or impinge upon them when those actions are committed by private parties,” he says. In other words, the Constitution concerns itself only with limiting the power of the state to punish people for having unpopular opinions. It doesn’t address the power of a private employer to threaten someone’s livelihood because she has unorthodox politics, religious views or living arrangements. The net effect of this public/private division, by the way, is much greater free speech protection when the government itself is your boss, though Barry points out that even this protection is eroding with increased privatization of government functions.

For Barry, “the civil religion that underpins work and employment in the United States is the religion of markets.” Property rights, not civil rights, hold sway in the workplace because the relationship between employer and worker is seen as similar to any other mercantile exchange: the employee is selling labor; the employer is buying. It’s a deal between equals, and either party—unless there’s a binding contract that says otherwise—is free to withdraw from it at any time. Speechless examines how this concept of “employment at will” has been used since the 19th century as a license to stifle the free speech of workers, even when that speech takes place outside work and is not directly tied to job performance. Barry cites the case of Lynn Gobbell, an Alabama factory worker who was fired from her job in 2004 for sporting a John Kerry bumper sticker on her car. Her boss was an outspoken Bush supporter.

Such blatant disregard for free speech rights is not typical of employers, Barry concedes, but the market model of employment means a private employer can dismiss or discipline an employee for almost any expression the employer deems unacceptable—the few exceptions include whistle blowing and union organizing. The principle of employment at will is deeply ingrained in American law—and the American psyche—but it unfairly favors employers, Barry argues, because it ignores the reality that most workers are not free to surrender their jobs over a free speech issue. People need to pay the rent, and jobs can be hard to find. There is an inevitable chilling effect on free speech when workers know they can literally be thrown out in the cold for saying the wrong thing. The fact that it’s perfectly legal under current employment laws should disturb anyone who relies on a paycheck.

Americans’ cultural devotion to free speech is as potent as their love of an unfettered marketplace, and the tension between the competing principles has created a long history of legal wrangling. With impressive clarity, Barry explores the maze of court decisions that have addressed the conflict, delving into the complexities—and occasional absurdities—of resulting law. He demonstrates that even where some speech protection exists, it’s often ineffective. The patchwork of state laws on workers’ rights, for example, results in laughable inconsistencies. Barry cites cases in Colorado and North Dakota, which both have so-called “lifestyle discrimination protection” statutes intended to prevent employers from interfering in the private activities of employees. In the Colorado case, an airline employee was fired for writing a letter to a newspaper complaining about his company’s cost-cutting practices. He sued and lost. The North Dakota case involved a staff chaplain at a nursing home who was fired after an arrest for masturbating in a department store rest room. He sued and won.

Barry is president of the American Civil Liberties Union of Tennessee, and he approaches the issue of workers’ rights as an activist as well as a scholar and management expert. While he acknowledges the importance of protecting the workplace from disruptive or hostile employee expression, he remains an unabashed proponent of freer speech for workers. Quite apart from the resulting benefit to individuals, Barry believes a more open employment atmosphere fosters a healthier society because, for many people, the workplace is a primary source of community, the place where civic and civil life is now centered: “When employees encounter harsh reactions to their expressive activities at work or after work, or when they self-censor because of fear of likely reactions, then interactions and relationships that might build social capital are less likely to occur.”

Speechless is ultimately an argument for a transformation in American employment law, ideally one that abandons the principle of employment at will. It’s a tall order, especially since it currently confronts the twin hurdles of economic globalization and the increasingly intrusive security state, which has its own reasons for stifling expression. Barry makes a compelling case, however—at least for those who believe that free speech should be a core value of any democratic society worthy of the name.