Following the assassination of Charlie Kirk, there were numerous media reports about employers firing or taking other disciplinary action against employees for making political comments about Mr. Kirk and his death. These events sparked debate about the limits of free speech and job consequences of expressing political beliefs.
Photo by Markus Winkler via Unsplash.
While the First Amendment protects individuals from government censorship, that protection doesn’t always extend to the workplace. Even when you’re off the clock, public statements —including social media posts— can negatively affect your employment.
For the most part, private employers have broad discretion to discipline employees for speech that disrupts operations or damages public trust in the employer. For government employees, the law weighs an employee’s free speech interests against possible disruption to the government’s performance.
Do private sector employees have First Amendment rights?
Unlike government workers, private-sector employees have very limited workplace protections when it comes to speech and political activity. Most private employment is at-will, meaning your employer can fire you for any reason or no reason at all, as long as it’s not an illegal reason, such as unlawful discrimination or retaliation. Generally, it is legal to fire employees or rescind job offers based on activity the private-sector employer find offensive, controversial, inconsistent with company values, or simply bad for business. However, private-sector employees have rights under other specific laws and policies.
For example, the National Labor Relations Act may prevent an employer from firing you for making comments about workplace conditions, safety, or discrimination. Additionally, some state labor laws protect off-duty political activity (e.g., California Labor Code §§ 1101–1102 prohibits employers from controlling or retaliating against employees for political beliefs or activity). Finally, your company’s policies or employee handbooks may limit arbitrary termination or protect certain types of speech. Bear in mind that these types of internal policies are not laws. Firing an employee in violation of a company policy may be unfair but not illegal.
Can I sue my employer for firing me because of my political speech?
Again, most private-sector employees are employed at-will, which means their employer can fire them for any reason or no reason at all. However, you may be able to sue your employer for firing you for speech if:
- You engaged in the speech while off duty, and state law prohibits your employer from firing you for off-duty political speech;
- You were participating in protected concerted activity; or
- Your employer breached a valid employment contract or violated public policy.
Does the First Amendment protect federal employees?
Several factors determine whether the First Amendment protects federal employees. In part, First Amendment protection depends on whether a person is speaking in their personal capacity as a citizen or in connection with their job.
Does the First Amendment apply to speech at work?
The First Amendment only protects an individual’s speech, comments someone makes as a citizen. When an employee speaks —verbally or in writing— as part of their job duties, First Amendment protection does not apply. The government can discipline public employees for comments they make within the scope of their employment. [1] Therefore, federal employees should be cautious when expressing their opinions in public statements, which include posting, liking, or sharing content on social media.
In fact, the Hatch Act and related regulations prohibit federal employees from engaging in political activity when they are:
- On duty
- In a federal building or on federal property
- Wearing a uniform or official insignia
- Using a government owned or government leased vehicle
Check out our blog post on the Hatch Act.
Also, while some federal employees are restricted only while on duty, others (e.g., employees of law enforcement and intelligence agencies) must refrain from political activity altogether.
Can the government fire me for speech I make outside of work?
Generally, federal employees have First Amendment rights when speaking as private citizens on matters of public concern. Under the law, workplace concerns, such as duty assignments and office morale, are typically matters of personal interest that are not protected by the First Amendment. [2]
To determine if the government violated an employee’s First Amendment rights by firing them for off-duty comments, courts apply a balancing test that weighs the employee’s rights against the government’s interest in maintaining efficient operations and public trust. Your speech may be protected if:
- You were speaking as a private citizen, not in your official capacity.
- Your speech addressed a matter of public concern, such as political or social issues or topics of general interest and of value and concern to the public or newsworthy.
- Your speech did not materially disrupt agency operations.
- Your speech was a substantial or motivating factor in adverse employment action. [3]
Public officials must be especially cautious when using social media. The Supreme Court has held that a public official’s social media activity may constitute government action if:
- The official has actual authority to speak on behalf of the government, and
- The official purports to exercise that authority when posting online. [4]
Finally, it is illegal for the government to fire or discipline an employee for speech that constitutes whistleblowing. For more information about whistleblower protections, see our post here.
Does the First Amendment protect state government and local government employees?
Most state and local government employees have First Amendment protections that are similar to those of federal employees. Determining whether a state or local government violated an employee’s First Amendment rights depends on the same considerations:
- Was the employee speaking as a private citizen?
- Did the speech involve a matter of public concern, without causing undue disruption? [5]
Some states offer additional protections beyond the First Amendment. For example, Maryland recognizes wrongful discharge claims for exercising free speech. Additionally, some states have protect state government employees from retaliation for disclosing fraud, waste, abuse, or other illegal activities.
Depending on your employer, the comment you made, and other circumstances, the following factors may determine whether your state or local government employer can fire or discipline you for speech:
- Did your speech occur on the job or off duty?
- Was your speech directed at a protected group or individual?
- Did your speech impair public trust or workplace relationships?
- Did your speech involve a matter of public concern?
- Did your speech cause undue disruption?
Can an attorney help me sue my employer for violating my free speech?
If you are facing termination or other discipline based on speech, it may be helpful to consult with an attorney. An experienced employment attorney can advise you about your rights and assess whether your employer violated your rights under the First Amendment or other laws and regulations. Alan Lescht and Associates, P.C., represents private-sector and state and local government employees in Washington, DC, Maryland, and northern Virginia, as well as federal government employees around the world. Contact us to schedule a consultation with an experienced attorney to discuss your situation and learn how we can help you achieve the best possible outcome during this challenging time.
[1] Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
[2] Connick v. Meyers, 461 U.S. 138, 148–49 (1983).
[3] See, e.g., Sanjour v. EPA, 56 F.3d 85, 90 (D.C.Cir.1995) (applying Pickering test and concluding that criticizing the EPA’s policies is protected speech); Tao v. Freeh, 27 F.3d 635, 638–39 (D.C.Cir.1994) (applying Pickering test and holding that an FBI employee’s complaint about racial discrimination was “protected speech”).
[4] Lindke v. Freed, 144 S. Ct. 756 (2024).
[5] See, e.g., Grutzmacher v. Howard County, 851 F.3d 332 (4th Cir. 2017).
