Conventional wisdom used to dictate that employers should refrain from taking political positions, and employees’ personal political views had no place in the workplace. The widespread use of social media has changed this calculus today. While technically not part of an employee’s workplace behavior, employees’ personal social media accounts are often public and available for all colleagues to view. This means when an employee speaks out on these platforms, they are also communicating to their co-workers. When an employee’s viewpoints or statements are construed as offensive, harassing or discriminatory, employers are increasingly taking action by disciplining or even terminating the offending employee. Whether such actions could land the employer in legal trouble is an increasingly perilous minefield.
While the First Amendment protects most speech from regulation by the government (with certain exceptions, such as speech that imminently incites violence), its protections do not apply to private institutions, such as employers in the private sector. Thus, while individuals generally have a Constitutional right to peacefully express their views without government interference, private employees do not have the equivalent right in the workplace. A private sector employer can fire an employee in response to the employee’s political activities or other speech without violating the employee’s First Amendment rights.