How Much Does the First Amendment Really Protect Me at Work?

Over the past few weeks, there has been a heightened interest in the First Amendment’s freedom of speech as it relates to what employers can and cannot keep you from saying or doing, especially when it comes to using social media to express your political opinions. Regardless what those views may be, it’s worth understanding your rights and any limits on your freedom of speech.

Generally speaking, the First Amendment protects your right to speak or not speak, including online. For example, the First Amendment allows you to stand and recite the National Anthem, or you may sit or kneel in silence. However, the First Amendment primarily protects you from government action, so your constitutional rights are protected if you work for the government or a public university or agency. But your rights may be limited if you work for a private employer.

When you work for a private employer, your conduct is typically dictated by employee handbooks or policies, and possibly an employment contract. And employers are increasingly creating social media policies in an attempt to control what their employees may post on social media platforms, even if it is not on company time. Some states have laws that protect people’s social media privacy, however, Massachusetts does not. Massachusetts has tried to create laws to protect employee’s social media privacy as well as that of students at school, but the last attempt at passing a Senate bill failed in early 2017. Consequently, your private employer can punish or fire you for what you say on and off the clock, in public or on social media if what you say violates what you’ve agreed to in your employment contract or any applicable employment policies.

But this doesn’t mean that employers have an absolute ability to fire you for exercising your right to free speech. Employers who fire employees for speech may be violating the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. 

Before you decide to express your views in public, make sure you understand your employer’s applicable policies and the laws in your state. And think about how comfortable you are working for an employer who might want to limit your constitutional rights.

Bianca Gay is a lawyer at the Law Office of Bianca Gay. Feel free to reach out to her on Twitter @BJGEsq.