Q: I read in the paper that someone is suing their employer claiming they were demoted and later forced to resign because of a video they posted on social media expressing a controversial political stand. They stated the employer’s actions “went against their first amendment rights.” Do they have a point?
A: Nope, I don’t think so. Although I’m not a lawyer, I don’t believe the case has solid legal ground. Here’s why:
The First Amendment protects your right to speak your mind in the public square without the government trying to silence you or censor you. So you can say whatever you want -insult your fellow humans, or the government itself- and government agents are not going to knock on your door and threaten you or imprison you as could happen in other parts of the world.
But the First Amendment does NOT say you can say whatever you want and your employer must retain you. There is no amendment ensuring your right to employment, and your employer can certainly censor you and fire you for your “speech” in the virtual square.
Besides, Florida is an “employment at-will” state, which means -absent a contract or union- employers can fire at any time for any reason as long it’s not a discriminatory reason.
But, you might ask, “Can employers fire you for speech activities or behavior done “outside working hours”?
Well of course they can, as anyone who’s been fired for attending a Nazi rally, or getting a weekend DUI, or posting racy photos on Facebook can tell you. There’s an adage: “We have freedom of speech but not freedom from the consequences”.
Having said all that, whether or not an employer decides to fire someone over objectionable speech activities or behavior will depend on many factors. The more visible, and public facing the position, the less tolerance for trespasses. Public employers and private companies with certain wholesome reputations will be more protective of their image than those who fly under the radar.
Articles we read in the news are often thin on details and perhaps there’s a lot more to it, but basing a wrongful termination suit on First Amendment rights sounds very shaky to me.
©Copyright Eva Del Rio. Send questions to Eva@evadelrio.com
