Is it legal to fire an employee for his political views?
What happened to the hip-hop group Public Enemy after it agreed to perform at a rally in support of Sen. Bernie Sanders’s (I-Vt.) presidential campaign is not as simple as it might appear.The group rose to national prominence providing a voice for black Americans in the late 1980s and early 1990s. At the time, violent crime in the United States was soaring, largely due to the emergence of crack cocaine. Black communities were hard hit, with hundreds of deaths each year in major cities.

There was a push to crack down on crime, leading to broad enforcement actions by police departments, which increased tensions with affected communities. Public Enemy responded by using music to verbalize the frustration, fear and anger those communities felt. Their most famous song, “Fight the Power,” became a broad anthem of opposition to the established authority.

In that sense, then, the link with Sanders was fitting. While the context is different, Sanders and Public Enemy share a message of pushing back against institutional power, particularly when it is used against the poor or disadvantaged. A concert was planned for March 1.But Public Enemy is a group, fronted by rappers Chuck D and Flavor Flav. Flav objected to the way the concert was being promoted and declined to participate. In response, Public Enemy fired Flav in a public statement.

“Public Enemy and Public Enemy Radio will be moving forward without Flavor Flav,” it read. “We thank him for his years of service and wish him well.”

This introduces questions that quickly spiral into weird territory. Was Flav fired because of his political views? Can he be fired for that? Can he even be fired from Public Enemy? How does that actually work?

Some of the answers come more easily than others.

Was Flav fired because of his political views? Apparently not.

The objection Flav raised wasn’t to the concert itself but to how the Sanders campaign was promoting the concert. In a letter sent to the campaign last week, Flav’s attorneys objected to the “unauthorized likeness, image and trademarked clock” — a reference to the oversize clock that Flav wears on a chain around his neck — in advertising the show. As the letter pointed out, the concert included only Chuck D and not Flav, who didn’t endorse any candidate.

Flav (whose real name is William Drayton Jr.) has used the name “Flavor Flav” for some time. There’s a version of a “Flavor Flav” logo registered as a trademark with the federal government that includes the clock.

“If Bernie allows this deceptive marketing to continue without clearly correcting the messages to reflect the true nature of this endorsement which should accurately read: ‘Chuck D of Public Enemy’,” the letter concludes, “Senator Sanders will himself have played a part in whitewashing a key chapter in American History.”

Chuck D responded angrily, at one point writing on Twitter that Flav doesn’t “know the difference between BarrySanders or BernieSanders.”

Spoke @BernieSanders rally with @EnemyRadio. If there was a $bag, Flav would’ve been there front & center. He will NOT do free benefit shows. Sued me in court the 1st time I let him back in. His ambulance lawyer sued me again on Friday & so now he stays home & better find REHAB

— Chuck D (@MrChuckD) March 2, 2020

The announcement that Public Enemy would be “moving forward” without Flav followed. The specifics of this unusual case aside, it raises the broader question of how and when you can be fired for political reasons.

Can you be fired if your political views differ from your employer’s? In most cases, yes.

Eugene Eisner has been a labor and employment lawyer for more than 50 years in New York City. He spoke to The Washington Post by phone Monday to address this question.

“You start from the basic position that the [National Labor Relations Board] protects people who engage in protected political activity,” Eisner said. “The question is, how do you define protected activity? Political speech is not defined as protected activity.”

More broadly, while you do have First Amendment rights to speak your mind, your employer can still fire you for what you say.

A musician such as Flav is probably part of a union which might offer protections that the law doesn’t. But “if there is no collective bargaining agreement,” Eisner said, “then there would be no protection for an employer to discharge somebody for whatever reason — as long as it’s not for discriminatory reasons like age and sex and gender and things like that.”

In other words, had Flav been fired because he refused to join in Public Enemy’s collective endorsement of Sanders, he would have been out of luck unless his union stepped in on his behalf.

Can Public Enemy fire Flav? It’s hard to say.

Flav responded to the statement from Public Enemy on Monday afternoon.

“I didn’t sue you on Friday,” he wrote on Twitter, using a liberal number of commas, “i asked the [Sanders] campaign to correct misleading marketing,,,that’s all it was,,,I’m not your employee,,,i’m your partner,,,you can’t fire me,,,there is no Public Enemy without Flavor Flav,,,so let’s get it right Chuck.”

Jorge Arciniega, an entertainment lawyer in Los Angeles, indicated in a phone conversation with The Post that the nature of the relationship between Flav and the group is critical. Most groups are slow to formalize the relationship, likening the need to a prenuptial agreement. (“Everybody believes that they’ll live happily ever after and there will never be disputes,” he said.)

“One of the key things that is not written down is, what governs our relationship?” he explained. “How do we make decisions? Is it majority vote? Do we have a president or a leader? What happens if there’s four members and there’s a tie between us? How do we break that tie? If and when the group dissolves, who gets the assets?”

One of the key issues that emerges later in a musical act’s relationship is the use of the band’s name in the future — which is precisely what happened here. Chuck D is at this point claiming ownership over Public Enemy. Flav is disputing it. Again, in fact; Flav sued Chuck D for royalties in 2017 claiming that Chuck D and others were making money from his likeness.

The nature of the relationship between Chuck D and Flavor Flav and the legal boundaries of it are unclear. It’s possible that there’s an agreement in which neither can use the name “Public Enemy” when performing individually. It is probably not the case, though, that Chuck D could prevent Flav from performing Public Enemy songs, given that there are broad rights under the law allowing musicians to cover copyrighted songs.

We’ve run into similar concerns before. Musical acts in the era of President Trump have objected to Trump using their music at his political events. Queen, for example, took issue with the use of “We Are the Champions” at the Republican convention in 2016. But musical acts are often out of luck. The rights to using songs are generally managed by third parties with whom others can make licensing agreements.

In short, then, what we have here is a new manifestation of an old beef between Chuck D and Flavor Flav. While the group’s music was often political, Chuck D was the serious force behind the group’s message. Flav usually served as the hype man, amplifying what Chuck D was saying.

As with so many other groups of friends in a polarized political era, a difference in political views and in the perceived urgency of the moment exacerbated old tensions. Chuck D’s criticism that Flav will authorize only a Public Enemy endorsement in exchange for money notwithstanding, it’s not clear that he can oust Flav from the group. What is clear is that the group no longer exists as the voice it once did.

Incidentally, you can license the song “Fight the Power” from BMI. Three members of Public Enemy and one producer are credited as its composers. Chuck D is one of them. Flav is not.