“You Can’t Fire Me For Posting That!” Or, Can You…?

Important things to know about the reality of First Amendment rights

Charlie Kirk’s assassination prompted a firestorm of sentiment that rang across social media channels ranging from outrage to, in some fringe circles, celebration. The result, in some cases, was rapid action by employers who terminated employees whose hate speech threatened to tarnish their brands.

A fiery debate ensued following these firings, as many staunchly asserted that employers couldn’t fire employees for simply exercising their First Amendment rights. What many don’t fully comprehend, though, is what First Amendment rights really mean and where they do, and don’t, apply.

When an employee’s controversial tweet goes viral or their political Facebook post sparks workplace tension, many business leaders face the same question: “What can we legally do about this?” The answer is more nuanced than you might expect, even for private employers.

Recent legal guidance from Ford Harrison reveals that while private companies have more flexibility than government entities, the landscape is still filled with potential legal pitfalls that require strategic navigation.

The Legal Reality for Private Employers

What’s the difference? According to Ford Harrison: “The First Amendment alone does not limit a private employer from terminating an employee’s employment for speech.” Private employers don’t have the same requirements as government employers that must carefully balance First Amendment protections.

This doesn’t mean, though, that employers have carte blanche to discipline employees for any social media activity that creates workplace discord.

The Hidden Legal Constraints

For many employers, a greater concern than trampling on First Amendment rights is ensuring compliance with the National Labor Relations Act, which applies to both unionized and non-unionized workplaces. As the National Labor Relations Board says, employees have “the right to join together with coworkers to improve their lives at work—including joining together in cyberspace, such as on Facebook.”

This means posts about working conditions, wages, workplace safety, or organizing efforts are legally protected, even if they paint your company in a negative light or create internal tension.

Political posturing and sharing of personal political grievances, though, generally don’t relate to working conditions. And, in fact, the most compelling business case for social media discipline often centers on reputational harm.

Employers Have a Right to Protect Their Brands

Even states that have laws protecting employees’ off-duty activities, like California, New York, and North Dakota, also recognize legitimate business interests. For instance, New York’s off-duty conduct law includes exceptions “when employee activity creates a material conflict of interest related to the employer’s… proprietary or business interest.” Similarly, Utah allows action when “expression or expressive activity is in direct conflict with the essential business-related interests of the employer.”

Protections also vary by industry. A financial advisor posting conspiracy theories carries different legal and reputational risks than a warehouse worker doing the same.

So what steps should you take to minimize risk? There are some practical things every employer should do.

Practical Steps to Minimize Risk

There are some important steps employers can take to minimize the risk of backlash and legal risk when reacting to employee comments that have the potential to negatively impact business reputation.

First, communication. Educate and inform employees about the true meaning of their rights to free speech in your work setting. Inform them of the importance of protecting the corporate brand and outline the specific expectations you have for their behavior and actions. Establish clear policies and ensure employees understand how these policies apply to them, both within and outside the workplace. Ensure that you have legal counsel review those policies and related communications.

Before taking action, conduct thorough due diligence to fully understand what has actually happened. In today’s digital environment, the possibility exists that an employee has been the subject of a deepfake, for instance. Verifying the authenticity of posts is critical. Your policies should focus on comments that:

• • • Violate professional licensing requirements related to employees’ roles.
    • Specifically target customers, vendors, or business partners.
    • Involve illegal activity that reflects on professional judgment.
    • Lead to demonstrable customer complaints or business losses.

Finally, be consistent in enforcing your policies. Inconsistent enforcement can lead to discrimination claims. Document your reasoning and ensure similar situations receive similar treatment.

The Bottom Line

Private employers do have the ability to discipline or even terminate employees whose comments damage the company’s brand or reputation. The principles of free speech are nuanced and generally apply more to government entities than to private businesses.

Your employees may not understand that, so you can play an important role in helping to educate them, ensuring they understand your policies and expectations, and creating a work environment that is positive and supportive.

When you can demonstrate concrete business consequences and consistent enforcement while respecting protected activity, you’re minimizing the risk of both legal action and negative public sentiment.