Can you be fired for hate speech? Or does the first amendment protect you? If speech is protected under the First Amendment, then how can people be fired from work for exercising their constitutional rights?
Let’s take a look at firing in Virginia, and how Freedom of Speech vs. a hostile work environment impacts that.
The First Amendment
While free speech is a core value in America, this doesn’t really apply to private sector employees. The First Amendment protects all citizens from government intrusion on their speech. It states “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.” Other provisions apply this rule to state and local governments.
So, it really only applies to what the government can do, not what private citizens can or can’t do. Under the Bill of Rights, it’s only the government that can’t limit your freedom. To help you understand, think of how the government may not be able to restrict your right to buy a gun, but your spouse can refuse to live in a home with firearms.
Since the First Amendment doesn’t apply to private employers, they can never violate it. Therefore, they have every right to restrict their employees’ speech without violating constitutional rights.
What About Government Employees?
Typically, government employees (such as police officers, court clerks, or city hall administrators) do enjoy protected speech under the First Amendment. However, that protection is limited. If speech interferes with a government employee’s ability to fairly do his job, that employee can still be legally fired for engaging in hate speech.
So, if a police officer participated in a white nationalist rally, his department might decide that he could not neutrally and lawfully engage with citizens of different races. Therefore, he couldn’t properly do his job as a police officer.
Hostile Work Environment
Hate speech is defined as “speech that offends, threatens, or insults groups based on race, color, religion, national origin, sexual orientation, disability, or other traits”. If your activities, even in your personal life or personal social media, reflect poorly on your employer, your boss might decide to fire you.
Hate speech creates a hostile work environment, which is an obvious problem. Not only does it counteract diversity and inclusion initiatives, but it also tarnishes the reputation of the organization. Federal and state laws prohibit discrimination in the workplace based on race, gender, religion, and other categories.
Nothing that you post online is private. Nothing. As a proactive measure, many companies have specific social media policies governing what employees may or may not say on social media. Additionally, they have anti-discrimination policies in place that memorialize the company’s position on homophobic and racist speech and make it clear that this behavior will not be tolerated.
Firing in Virginia Freedom of Speech vs. Hostile Work Environment
To summarize, the First Amendment protects your speech from the government, but it doesn’t prevent the rest of the world from reacting to your speech. Private sector employees can, and are, fired for hate speech. Even government employees can be fired for hate speech if it impacts their ability to do their jobs. And finally, no matter how careful you think you are with your private social media and activities, your employer can fire you for something you post online or for participating in a certain march/rally.
If you think that you were fired for speech that should have been protected, or you work with someone who is creating a hostile work environment with hate speech, you should speak to an attorney. Contact Cook, Craig and Francuzenko today to learn more.
