Can a private employer fire you for speech outside of work? Does the First Amendment offer protections to employees against the actions of their employer? Lee Rowland of the ACLU discusses the rights of employees and the limitations of First Amendment when it comes to speech rights in the context of private employment.
Lee Rowland is a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. She has served as lead counsel in numerous federal First Amendment cases.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..." The First Amendment to the United States Constitution (emphasis added)
Lee Rowland: Recently, a photograph went viral of a woman giving the middle finger to Trump’s motorcade. When she got to work, her employer fired her. Can a private employer fire you for what you say on your private time? Generally, the answer is yes.
My name is Lee Rowland. I’m a free speech advocate and attorney with the National ACLU, and we’re here to talk about employees’ free speech rights, or lack thereof. The First Amendment to the US Constitution starts with the phrase, “Congress shall make no law.” And then it goes on to enumerate the First Amendment rights to speech and protest and association that we all enjoy. But those first few words are really important. The First Amendment doesn’t say that your beliefs, your speech are absolutely protected.
What the Constitution says is that that speech is protected from censorship and punishment by the government. If you work for a private employer, not the government, that private employer isn’t subject to Constitutional limitations. So under the First Amendment, if your employer finds out that you flicked off the president on Saturday, or you went to a rally that your employer disagrees with, or maybe you went to a ball game of the rival team that your boss roots for, your employer generally can fire you for that reason without offending the First Amendment.
Now, there could be protections in place at the state or local level. Certainly, that rule does not mean that your employer can fire you based on a protected class like your race or your sex or your sexual orientation. But your belief system is not a protected class when it comes to actions by private actors. So if you work for a private employer, it’s good for you to know what the rules and expectations of your employer are, because the First Amendment does not protect your right to employment if your employer disagrees with something you’ve said or done. I’m Lee Rowland. I’m a First Amendment attorney with the National ACLU, and thanks for watching TalksOnLaw.