4 ms·

Asking questions is speech.

Retric 9y ago
It's not protected speech however. A company is free to say they will reject someone if they have a criminal background, they can't ask if you have a criminal background.
- SamReidHughes 9y ago
  What makes you think it's not protected speech?
  - Retric 9y ago
    It's a sliding scale at a high level: "Laws that regulate the time, manner, and place, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression." Critically, an interview process is almost by definition not a public forum and the bar is thus significantly lower. With various questions about protected classes being barred considered completely reasonable. Further, this prohibits time/manor but not content. Granted, some view free speech as nearly absolute, but with current case law this is rather far from the edge.
    - SamReidHughes 9y ago
      Whatever you're quoting is talking about it being okay to restrict speech in a public forum. They went out of their way to say time/place/manner apply to public forum speech. Why do you think that implies non-public speech would have a lower bar? Would it also be constitutional for the government to prohibit fellow employees from asking each other what their salary is? That's just about the legal question. For the more cosmic sort of question, asking questions is definitely part of free speech. Free speech includes the right to have a conversation.
      - Retric 9y ago
        > Why do you think that implies... Because that's the law. https://en.m.wikipedia.org/wiki/Forum_(legal) https://en.m.wikipedia.org/wiki/Forum_(legal) "A nonpublic forum is not specially designated as open to public expression. For example, jails, public schools, and military bases are nonpublic forums (unless declared otherwise by the government). Such forums can be restricted based on the content (i.e., subject matter) of the speech, but not based on viewpoint. Thus, while the government could prohibit speeches related to abortion on a military base, it could not permit a pro-life speaker while denying a pro-choice speaker (or vice versa)." PS: I get that people have strong opinions about this, but IMO if you care it's worth looking up the details. It's more reasonable than you might think.
- cjensen 9y ago
  Yeah. The question is WHY is it not protected speech.
geofft 9y ago
That's what I said about a reductionist enough lens. Sure, asking questions is speech. So is saying "we are an official Microsoft support provider" or "we are the FBI" or "we have a guaranteed cure for cancer" or "if you invest in our company, you will definitely get 200% returns". Do you believe that corporations have a constitutional right to the latter forms of speech? If not, what differentiates the two cases?
- SamReidHughes 9y ago
  It has nothing to do with being a corporation. You do have a right to say you have a guaranteed cure for cancer -- if that is in fact true, definitely.
  - esturk 9y ago
    It does have to do with a corporation because we're discussing about hiring for a business. If the statements are false, does that mean the individual/corporation won't get any repercussion from the gov't? No. When it comes to the matter of doing business, there's a level of restriction and punishment on the things they say.
    - SamReidHughes 9y ago
      Sole proprietorships can hire people too. Free speech rights in America aren't categorically different between corporations and individuals.
  - geofft 9y ago
    > You do have a right to say you have a guaranteed cure for cancer -- if that is in fact true, definitely. I mean, that's ... not true in the US. The burden is on you to prove it in a way the government is happy with first. You can't say it and simply be prepared to prove it if called out on it; you certainly can't say it and know it's true and not have public proof. If your position is "things widely acknowledged in the US as perfectly normal are actually unconstitutional prior restraint on free speech," that's fine, but please say that up front so we understand that you're taking an unexpected position.
s73ver_ 9y ago
So is asking someone's age, religion, marital status, sexual orientation, etc. Many of those are also banned.
- SamReidHughes 9y ago
  You're wrong. It isn't banned to ask these questions.
  - geofft 9y ago
    I mean, sure, if you want to be that pedantic, you (both as an individual, and as a company) definitely have a free speech right to ask those questions. You expose yourself to so much liability of a discrimination lawsuit that the practical effect is that you do not have a right to ask those questions. If you're okay with it being technically legal but impractical to ask these questions around salary or criminal history without legal liability, I suspect the rest of us are, too.
    - SamReidHughes 9y ago
      The difference with salary is that it's going to be illegal to ask in CA.
      - geofft 9y ago
        Yes. I agree that these are different. I'm curious if you think the difference matters - would you be okay with (or more precisely, would you think it's constitutional to have) a law that says, sure, you can ask for salary, but if it comes out that your offer was influenced by the quoted salary number and you would have paid a higher salary if you heard a higher quoted number, you are liable for back pay plus damages? I'd be fine with such a law (and I also think the current law gives slightly more freedom in practice).
        SamReidHughes 9y ago
        Absolutely not, regulating people's economic behavior like that is pure evil.

It's not protected speech however. A company is free to say they will reject someone if they have a criminal background, they can't ask if you have a criminal background.

SamReidHughes 9y ago
What makes you think it's not protected speech?
- Retric 9y ago
  It's a sliding scale at a high level: "Laws that regulate the time, manner, and place, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression." Critically, an interview process is almost by definition not a public forum and the bar is thus significantly lower. With various questions about protected classes being barred considered completely reasonable. Further, this prohibits time/manor but not content. Granted, some view free speech as nearly absolute, but with current case law this is rather far from the edge.
  - SamReidHughes 9y ago
    Whatever you're quoting is talking about it being okay to restrict speech in a public forum. They went out of their way to say time/place/manner apply to public forum speech. Why do you think that implies non-public speech would have a lower bar? Would it also be constitutional for the government to prohibit fellow employees from asking each other what their salary is? That's just about the legal question. For the more cosmic sort of question, asking questions is definitely part of free speech. Free speech includes the right to have a conversation.
    - Retric 9y ago
      > Why do you think that implies... Because that's the law. https://en.m.wikipedia.org/wiki/Forum_(legal) https://en.m.wikipedia.org/wiki/Forum_(legal) "A nonpublic forum is not specially designated as open to public expression. For example, jails, public schools, and military bases are nonpublic forums (unless declared otherwise by the government). Such forums can be restricted based on the content (i.e., subject matter) of the speech, but not based on viewpoint. Thus, while the government could prohibit speeches related to abortion on a military base, it could not permit a pro-life speaker while denying a pro-choice speaker (or vice versa)." PS: I get that people have strong opinions about this, but IMO if you care it's worth looking up the details. It's more reasonable than you might think.
cjensen 9y ago
Yeah. The question is WHY is it not protected speech.

geofft 9y ago

That's what I said about a reductionist enough lens. Sure, asking questions is speech. So is saying "we are an official Microsoft support provider" or "we are the FBI" or "we have a guaranteed cure for cancer" or "if you invest in our company, you will definitely get 200% returns". Do you believe that corporations have a constitutional right to the latter forms of speech? If not, what differentiates the two cases?

SamReidHughes 9y ago
It has nothing to do with being a corporation. You do have a right to say you have a guaranteed cure for cancer -- if that is in fact true, definitely.
- esturk 9y ago
  It does have to do with a corporation because we're discussing about hiring for a business. If the statements are false, does that mean the individual/corporation won't get any repercussion from the gov't? No. When it comes to the matter of doing business, there's a level of restriction and punishment on the things they say.
  - SamReidHughes 9y ago
    Sole proprietorships can hire people too. Free speech rights in America aren't categorically different between corporations and individuals.
- geofft 9y ago
  > You do have a right to say you have a guaranteed cure for cancer -- if that is in fact true, definitely. I mean, that's ... not true in the US. The burden is on you to prove it in a way the government is happy with first. You can't say it and simply be prepared to prove it if called out on it; you certainly can't say it and know it's true and not have public proof. If your position is "things widely acknowledged in the US as perfectly normal are actually unconstitutional prior restraint on free speech," that's fine, but please say that up front so we understand that you're taking an unexpected position.

s73ver_ 9y ago

So is asking someone's age, religion, marital status, sexual orientation, etc. Many of those are also banned.

SamReidHughes 9y ago
You're wrong. It isn't banned to ask these questions.
- geofft 9y ago
  I mean, sure, if you want to be that pedantic, you (both as an individual, and as a company) definitely have a free speech right to ask those questions. You expose yourself to so much liability of a discrimination lawsuit that the practical effect is that you do not have a right to ask those questions. If you're okay with it being technically legal but impractical to ask these questions around salary or criminal history without legal liability, I suspect the rest of us are, too.
  - SamReidHughes 9y ago
    The difference with salary is that it's going to be illegal to ask in CA.
    - geofft 9y ago
      Yes. I agree that these are different. I'm curious if you think the difference matters - would you be okay with (or more precisely, would you think it's constitutional to have) a law that says, sure, you can ask for salary, but if it comes out that your offer was influenced by the quoted salary number and you would have paid a higher salary if you heard a higher quoted number, you are liable for back pay plus damages? I'd be fine with such a law (and I also think the current law gives slightly more freedom in practice).
      - SamReidHughes 9y ago
        Absolutely not, regulating people's economic behavior like that is pure evil.