Employees’ free speech rights have limits, even on their own time

“I can do what I want!” “You’re not the boss of my mind!” “I have a First Amendment right to say whatever I want!” Whether from a precocious preteen or a challenging subordinate, the last of these exclamations can challenge even an experienced parent or supervisor. Fortunately for you (and me), this isn’t a parenting blog, so we’ll focus on the employment aspects of this statement. Do employees, in fact, enjoy a First Amendment right to be free from negative job consequences for what they say away from work and off the clock?

First Amendment and employees

Well, let’s dust off our pocket U.S. Constitution and have a look: “Congress shall make no law . . . abridging the freedom of speech.” So, the First Amendment is really about what the U.S. Congress can’t do. The Fourteenth Amendment extends the prohibition to state governments.

What does that mean in plain, modern English? It means that a private employer can take employment actions against employees and applicants based on their statements (including social media posts), even those made outside of work, without running afoul of the U.S. Constitution.

But what about government employees? Well, they actually do have a First Amendment right not to face negative government action (like being fired) for their off-duty expressions, but this isn’t as broad as the citizen’s right not to face negative government action (like being jailed) for expressing their opinion.

Public school teacher makes an example of herself