Employer Retaliation for “Free Speech” – the Limits of the First Amendment

Free Speech or Employer Retaliation?

Celebrities from all sides of the political spectrum are finding themselves in severe trouble for their protests and things they say.  Colin Kaepernick, a former NFL quarterback, finds himself unable to find a team – probably because of his protests during the national anthem before games.  More recently, Roseanne Barr was fired from the number one show on TV for an arguably racist comment in a tweet.  Doesn’t the First Amendment protect free speech, or is employer retaliation a limitation?

What about the First Amendment?

Some people say that the First Amendment only allows you to speak but does not “protect you from the consequences of your speech.”  This is simply wrong.  When the First Amendment applies, it prohibits people from the government imposing adverse consequences for that speech.

Government Entity versus Private Employer

The main point to remember, though, is that unless you work for a government entity, the First Amendment does not protect your job.  Like other provisions of the Bill of Rights, the First Amendment only limits government activity – or “state action.”  If a government agency had tried to prevent their speech, Ms. Barr and Mr. Kapernick might have had a First Amendment claim – but not against a private employer.

State Law Protections

However, there are some protections of employees under State law.  California law, for example, prohibits employers from disciplining employees for “political activities” or engaging in “any particular course or line of political action or political activity.”  The application of the California statutes to actions while at work are not clear, but they would at least seem to protect employees from being fired for political speech on their own time.  Similarly, Colorado law prohibits employers from terminating employees for “lawful activities” away from work, unless the restriction is a necessary job requirement.

In Summation

Employers and employees alike should think carefully about whether political activity is protected, and legal advice should always be sought before terminating employees based on their political statements.

For more information regarding business owners and free speech, check out this podcast episode or for more in-depth information, check out our video “Ballers, Bakers and the First Amendment.”

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. When he is not keeping our world safe for free speech, he enjoys spending time with his family, especially his grandson Jack. 

Ventola Law serves the Denver Metro area including Arvada, Aurora, Boulder, Brighton, Commerce City, Castle Rock, Golden, Lakewood, Littleton and Arapahoe, Adams, Douglas and Jefferson Counties.