Legal Insider: Does the First Amendment Protect Hate Speech and Your Job?

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in  Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry

In the wake of the tragic events this past weekend in Charlottesville, a number of the white supremacists protesting have been identified and outed by social media and then subsequently fired from their employment.

One issue that has arisen is the argument that these individuals have a First Amendment right to speak their minds, however wrong they may be, and to not suffer negative consequences. That is not true. The First Amendment offers almost zero protection for individuals who engage in hate or other inappropriate speech who are then fired from private sector employment.

There are very limited forms of protection for federal and public sector employees under the First Amendment only because the government implements employment actions. Generally, a government employee must be engaging in speech that is considered a matter of public concern to receive some protection.

That protection can be taken away if it interferes with the function of a government agency. In our experience, a public sector employer might need to take additional steps but can usually find ways to fire a public employee for engaging in hate speech.

In sum, not much has changed since the 1892 case McAuliffe v. Mayor of New Bedford in the Supreme Court of Massachusetts when Justice Holmes, in a famous quote involving the termination of a police officer for engaging in politics, stated: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” 

First Amendment

The First Amendment provides the following rights:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The First Amendment protects private individuals from government suppression of free speech, but not from other private individuals and/or companies who take action as a result of speech.  For instance, there is no First Amendment issue with social media companies selectively banning users from their platform based on their speech.  There could be a First Amendment issue if a government entity made a similar type of decision based on speech.

State Laws

Some states, but not Virginia, have offered state legislation that protects employees from being terminated for legal, off-duty speech that does not conflict with the employer’s business-related interests.

States of note that offer this minimal protection include California, New York, Colorado, North Dakota and Montana.  Even under these laws, it would be relatively easy for an employer to establish that off-duty hate speech interferes with an employer’s business interests (e.g., boycotts). In short, there is no true legal protection for hate speech for private employees in these states.

Recent Issues Relating to the Charlottesville Tragedy

These issues have arisen principally as a result of the identification of far-right protesters by various social media groups that have identified hate-speech protesters and then contacted their employers, schools, and friends.

The principal group that has engaged in this tactic is the Twitter account, YesYoureRacist. The group has apparently had success in convincing employers to terminate employees based on their participation in the Charlottesville protest.

Obviously, employers would much rather terminate an employee involved in free speech than face the consequences of a boycott. Can they do so?  Yes, they can. Why? Because the First Amendment protects the right of people engaging in hate speech, but it also protects their employers who do not wish to be associated with them.

As such, First Amendment rights go both ways. Free speech protects the ability of citizens to speak and engage in other forms of hate speech without the government banning it.  However, it does not protect individuals who engage in hate speech from the consequences of their actions.  In other words, there should be no misconception that the Constitution provides a First Amendment right to engage in hate speech and not suffer the potential consequences of being fired for that very speech.

If you need assistance with an employment issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.