Abstract
Lawrence Korb, formerly an Assistant Secretary of Defense and a current employee of a large equipment manufacturing firm for the U.S. military, Raytheon, was terminated following his public criticism of defense spending and demand for reduction of the Navy’s fleet. Raytheon justified the termination of Korb on grounds that his actions were contrary to the success of their Navy ships manufacturing business. This report provides a review and analysis of two cases: Korb v. Raytheon, 707 F.Supp. 63 (D. Mass 1989) and Connick v. Myers, 461, U.S. 138 (1983) in terms of the facts of each case, the specific issues of each case and the final rule by the court. case as relates to constitutional individual rights and their applicability to the suit of wrongful termination. The report analyzes and reviews the follow legal challenges relating to the case: challenges with freedom of speech, challenges with employment law, and the public perceptions of Raytheon and its influence with the Department of Defense. There is also analysis and discussion on any fraud or misinterpretation of either side of the case. Relevant additional court cases are used to support the analysis.
Korb v. Raytheon
Facts of the case and issues
Lawrence Korb (plaintiff), a Pennsylvania resident, brought a suit against Raytheon Corporation (defendant), a Delaware-based large equipment manufacturing firm for the U.S. military. Korb, also a former Vice-President of Raytheon in charge of Washington Operations, alleged that Raytheon had wrongfully terminated his employment because of practicing his right of free speech as guaranteed by the First Amendment of the U.S. Constitution as well as Article XVI of the Massachusetts Declaration of Rights (Silver, 2001). In December of 1985, following Raytheon’s (defendant) permission, Lawrence Korb (plaintiff) had been admitted to the executive board of the Committee for National Security (CNS), a not-for-profit organization with the mission to inform the public on issues pertaining to national security. On February 25, 1986, during Korb’s normal lunch hour, CNS held a press conference in the Senate office building to release its annual alternative defense budget. Korb spoke at the press conference and his remarks were subsequently reported by the Washington Post newspaper (Barry, 2009). The article reported that Korb as a former assistant secretary of Defense and then a private citizen working for Raytheon Co., had been critical of the increased defense spending and called for the scaling back of the department’s 600 ship fifteen carrier group that was supported by the Secretary of Navy.
On March 12, 1986, in response to the complains of the Defense Department and congressional officials, Raytheon Co. terminated Korb from his vice-president position, offering a less lucrative role which Korb regarded as a demotion and unconstitutional effort to silence him. As a result, Mr. Korb declined the position and instead filed a suit against Raytheon for wrongful termination (Barry, 2009).
Rule
In its ruling, the Massachusetts Supreme Court held that Korb characterized the public policy in question too broadly. It ruled that Korb’s situation was not that of an employee terminated for speaking against issues of which his employer had no interest, financial or otherwise. Having been hired as Raytheon’s spokesperson, Korb was obliged to serve the interests of his employer (Silver, 2001). The court passed judgment that the first amendment protection only forbade the government from making a law abridging the freedom of speech of speech but not to a private company such as Raytheon.
Connick v. Myers, 461, U.S. 138 (1983)
Facts
Sheila Myers worked for five and a half years as an assistant district attorney. She protested to her boss, D.A. Connick and other employees after learning of the plan to transfer her to another area of responsibility within the same office. She held conversations with several of her co-workers, after which she developed and circulated a questionnaire relating to office operations and policies (Silver, 2001). Connick promptly fired her when it was brought to his attention. This prompted Myers to file a suit against Connick under 42 U.S.C. § 1983, arguing that her termination was in violation of the First Amendment expression rights.
Legal issues
Two issues related to the Connick v. Myers case:
i. Does firing of a public employee, partly based on speech relating to matters of public interest, raise legal issues amenable to judicial review under the First Amendment?
ii. Did the termination of Sheila Myers violate her First Ammendment rights?
Rule
In its ruling, the Court adopted a “balancing” approach by weighing the plaintiff’s First Amendment protection of free speech on the one hand, against the states’ need for “efficient and successful” public office operation (Barry, 2009). The court observed that, in an office context, a significant amount of deference is as a result of an employer’s judgment on personal matters. In the context of expression at the attorney general’s office on matters of personnel transfer, the court found that Myer’s expression threatened the function of the office, and thus the former outweighed the constitutional protection afforded to Myer’s speech.
Challenges with Freedom of Speech
The Massachussetts Supreme Court threw out Korb’s claim under the state civil rights statute. It held that while Korb had a right to speak out on issues of public interest together with the right to express personal views that Raytheon did not identify with, he had no right to exercise these rights at the expense of Raytheon, his employer. Given that Korb was hired to serve as Raytheon’s advocate, his speech effectively stripped him of that title (Franze, 1998). The court found Raytheon to have acted in its best interest by terminating Korb as its advocate, a business decision that was not in violation of any secured rights. Though the plaintiff had a freedom of expression, it was the purpose that the defendant paid him to do.
This case shows the distinct contrast between an employee of a private firm on the one hand, and an employee of the government on the other hand as relates to freedom of speech rights. The Massachusetts Supreme Court opinion about the Korb Case stirs memories of the highly publicized 1982 pronouncement of Justice Oliver W. Holmes in McAuliffe v. Mayor of City of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). The case involved a law enforcement officer who solicited money for a political committee that he was a member to. The errand policeman would then be dispelled from the police department, after which he petitioned the Massachusetts Supreme Court to restore his employment (Barry, 2009). In its ruling, the court held that the petitioner had the right to engage in political talk, but lacked the constitutional right to a law enforcement officer. The court argued that “there are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract” (Franze, 1998). As such, the employee has no right to complain due to the fact that he freely takes the employment on the terms that are offered to him.
This view has persisted in the USA until the early 1950s, but it has since been rejected by the U.S. Supreme Court as evidenced in Garrity v. New Jersey, 385 U.S. 493, 499-500 (1987). The court held that the state should not condition public employment due to an employee’s exercise of his/her First Amendment rights. While the First Amendment only forbids the government from interfering with an individual’s freedom of speech, state laws may provide protection to citizens in addition to what is guaranteed in the U.S. Constitution (Franze, 1998). This has been reinforced in Massachusetts in such cases as Redgrave v. Boston Symphony Orchestra, in which the decision of the latter to cancel its contract with Redgrave was tantamount to a violation of the Civil Rights Act.
Challenges with Freedom of Information
The fundamental freedom of the press and freedom of speech are to be found in the First Amendment of the U.S. Constitution. The Freedom of Information Act (FOIA), enacted in 1966, requires all federal agencies to make public most of its activities and records following a written request. However, in practice, this is not always the case as evidenced by the case of Raytheon Co. – a governmental contractor with obligation to the public (Barry, 2009).
As relates to Korb’s case, the Washington Post published Korb’s sentiments against the CNS budget and calls for reduced spending, terming Korb as being “critical of increased defense spending. Several military officials would express harsh disapproval of Korb’s sentiments. Raytheon Co. instantly summoned Korb to its headquarters in Lexington to inform him of impending danger to his position as vice-president of the Washington D.C. Mr. Korb wrote a letter to the Washington Post’s editor to clarity his earlier sentiments. The Washington Post then published Korb’s letter under the title “We Need More Money for Defense.” However, sustained objections from the Navy, Air Force, and Armed Services Committee would see Mr. Kobb fired from his position by Raytheon on March 12, 1986 (Barry, 2009). In this case, the freedom of press protected the Washington Post from any form of reprisal regardless of the fact that its decision to publish Korb’s comments at the press conference resulted in the termination of Korb’s employment.
Challenges with the Employment Law
In giving his comments at the lunch hour press conference by the CNS, Mr. Korb was speaking in his capacity as a private citizen as opposed to a spokesman for Raytheon Co. This incident raises a number of fundamental questions relating to the challenges with the employment law in the United States. First, it beckons the questions if Korb’s speech, as a private citizen, is subject to more protection that the interest of the nonprofit organization. Second, a grey area remains as to the point to which an employee’s association with his/her company ends – whether one is still part and parcel of the organization during non-working hours such lunch, evenings, and weekends. Third, it raises the question as to whether Mr. Korb would have been subject to the constitutional First Amendment protection if he had chose to express his reservations and recommendations of the Defense Department through a personal letter neither making explicit his employment connections with Raytheon Co. nor carrying company’s letterhead.
The prevailing legal provisions afford would afford Mr. Korb freedom of speech protection under the First Amendment if he were a government employee, protecting from termination of employment by the government (Tobias et al., 1987). By virtue of being an employee of a private firm, Mr. Korb’s protection by the First Amendment is relatively low. This is a sorry state of affairs because it translates that when an individual accepts employment contract with a private organization, he/she effectively forfeits his/her right to express an opinion about a bad practice of the employer. The freedom to participate actively in political talk without far reaching ramifications from the employer is significantly curtailed.
Further analysis of this case tempts one to wonder if, due to its high level dealing and reliance on income from the U.S. Government, a company like Raytheon has indeed grown into a governmental entity, and now its termination of Korb’s employment is in fact a state action. This argument can be supported by Holodnak v. Avco Corp., 381 F.Supp. 191 (1974), where the awarded a total of US$ 9113 plus attorney’s fee to a union member following Avco Corp.’s violation of his constitutional First Amendment in the collective bargaining agreement (Tobias et al., 1987). This Korb’s case made clear of the need for a new law that would require government contractors to respect the freedom of speech of their employees, and the contractors themselves assume the identity of a government entity.
Public perception of Raytheon and its influence with the Department of Defense
Raytheon enjoyed significant leverage as a powerhouse distributor of defense equipment to the United States government. In the eye of the public, Raytheon was synonymous with the U.S. Department of Defense, and an almost part and parcel of the U.S. government. As such, the public expected the company to allow much freedom of speech to its employees as would any other government entity. It is certain the Department of Defense had significant influence over Raytheon Co. as the former’s pressure and complaints forced the latter to terminate their employee who had brought about bad press to both organizations (Silver, 2001). This case exemplifies the need for a law that would establish government organizations to develop and supply defense or military equipment to the U.S. Department of Defense so that no weapons are purchased from private organizations, making their activities fully subject to public scrutiny with greater freedom of speech.
Fraud and/or misrepresentation of either side of the case
There are significant flaws on the part of Korb’s approach to the termination of his employment by Raytheon Co. It is apparent that, as an advocate of Raytheon, he did not abide to the company’s mission that states: “To be the most admired defense and aerospace systems company through our world-class people, innovation, and technology.” Mr. Korb should have understood that he still remain a representative of his employer, both on the clock and off the clock. This is the case with lawyers who are often dismissed by the American Bar Association if they exhibit misconduct either in the courtroom or outside the court (Franze, 1998). On the other hand, Raytheon Co. was wrong to base its decision to terminate Mr. Korb mainly on the much pressure exerted upon the company by officials of the Defense Department. As an employer, Raytheon needed to act with its own conscience in terminating the employment of a member of its staff.
Other cases
A number of cases are highly supportive to this case: Hupert v. City of Pittsburgh, Kaye v. City of Pittsburgh, Snepp v. United States, Garceth v. Ceballos.
In Hupert v. City of Pittsburgh, a police officer working for the Federal Bereau of Investigation embarked on a mission to expose the corruption in the police department. Eventually, the FBI reprimanded him on grounds that he was acting outside the scope of his expected roles (Silver, 2001). Huppert misrepresented himself by acting as double agent of the FBI and an informant.
Kaye v. City of Pittsburgh underscored the need to safeguard information sent forth and back through electronic mail. Kaye expressed his discontentment with his employment as well as the company through an email. The company reacted by sending him on administrative leave, after which Kaye filed a suit claiming violation of his constitutional rights, particularly freedom of speech. The Supreme Court dismissed the application (Barry, 2009).
Sepp v. United States involved a former CIA agent who revealed classified information about CIA activities in South Vietnam. This is contrary to his employment terms that demanded secrecy for life. All proceeding from the sale of his book were withheld to which Snepp sued for violation of his constitutional rights of freedom of expression. The Supreme Court affirmed an earlier decision by the Lower Court that Snepp’s constitutional rights were not violated because revealing information of national security is a violation of the FIOA (Silver, 2001). Korb and Snepp have similarities in the sense they both violated the terms of employment they agreed to.
Garceth v. Ceballos involved a Disrict Attorney asked by defense counsel to review a case that the affidavit police relied on to obtain a search warrant was claimed to be inaccurate. Cellabos presented his findings show misrepresentations in the affidavit to his supervisors and petitioners, recommending its dismissal. However, petitioners continued with the prosecution. Cellabos recounted his findings about the affidavit at a hearing on defense motion challenging the warrant, but was dismissed by the trial court (Barry, 2009). The action of petitioner to turn against him made Cellabos to file a suit over violation of both the First and Fourteenth Ammendments. In its ruling, the Supreme Court held that public officials making statements pursuant to their official duties are not acting in private citizens, thus their communicated are protected from employment discipline, same as was the case of Korb v. Raytheon.
References
Barry, B. (2009). Speechless: The Erosion of Free Expression in the American Workplace: Easyread Super Large 24pt Edition. ReadHowYouWant.com.
Franze, L. M. (1998). Texas employment law. Costa Mesa, CA: James Pub.
Silver, I. (2001). Public employee discharge and discipline. New York: Aspen Publishers.
Tobias, P. H., Sobers, S. J., Fitzpatrick, R. B., Torchia, D., & Heikens, S. G. (1987). Litigating wrongful discharge claims. Deerfield, IL: Clark Boardman Callaghan.
