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First Amendment Protections: What Do They Cover?

Published:  August 21, 2017

Following the tragic events in Charlottesville last week, there has been a deluge of news stories about the employment ramifications of individuals’ social media postings, especially as they relate to support for hate groups and related fringe political causes. An employee’s controversial statement has the potential to hurt your business, and it is important that employers understand their rights to take punitive action against employees for speech and conduct outside of the work place.

To begin with, many (if not most) individuals have a fundamental misunderstanding of their First Amendment protections. The First Amendment does not provide individuals with unfettered freedom of speech, but rather, in general, the First Amendment forbids the government from restricting one’s ability to speak or impose restrictions based on the content of speech. But even as applied to the government, First Amendment protections are not absolute. The government may still impose restrictions on the time, place, or manner of speech, as well as impose legal restrictions on certain types of speech such as threats, incitement, defamation, or obscenity.

Government employees have less protection from government action than private citizens. However, government employees have greater protection from employment action than your typical private at-will employee. In order to determine whether a government employee is entitled to free speech protection, the law balances the interests of the employee as a citizen in commenting upon a matter of public concern against the interest of the State as an employer in promoting the efficiency of public services it performs through its employees. Based on these factors, government employees receive the strongest protections when they are speaking as a citizen about a public concern and weakest protections when they are speak as an employee about a matter of personal interest. These interests are balanced against the government’s interests, including whether the employee’s speech impaired harmony among coworkers, impeded performance of the employee’s duties, interfered with the operation of the institution, or conflicted with responsibilities of the employee within the institution.

Compared to government employees, private employees have comparatively few free speech protections. Generally, private at-will employees can be terminated at any time for almost any reason, including no reason at all. However, there are several state and federal statutes that protect an employee’s right to voice concerns related to specific topics, such as opposing discrimination under Title VII, reporting health and safety violations under the OSHA, or engaging in “protected concerted activity” under the NLRA. Additionally, in some states, there are that statutes extend First Amendment-type protections to private sector employees.

If you have any concerns about disciplining or terminating an employee for something they said at or outside of work, we strongly recommend you consult an attorney at Royal, P.C. to ensure you are not running afoul of one of these protections.