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Free speech and the US First Amendment: where it is implicated, and where it is not

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
The right to free speech is protected by the First Amendment in the US, but what does this mean for private employers and employees? This article provides guidance on this topical question in the wake of the unrest at the US Capitol on 6 January.

In the wake of the 6 January 2021 unrest at the United States Capitol Building and several social media outlets suspending President Trump’s accounts, free speech is a hot topic. Although the right to free speech is ingrained into American life, free speech is not absolute. The Constitutional right to free speech is not implicated by the actions of these private social media platforms because they are private entities, not arms of the government. Moreover, the First Amendment does not protect certain speech intended to incite or produce violence and lawless action.

To be sure, free speech is an immutable right protected by the First Amendment, which provides that ‘Congress shall make no law…abridging the freedom of speech….’ But the right to free speech ends where it begins: with the plain language of the Constitution which guarantees it. The First Amendment only prohibits Congress (the legislative branch of the United States government) from abridging the right to free speech. This prohibition has since been made applicable to state and local governments through the Fourteenth Amendment, and generally prohibits government interference with free speech rights.

The First Amendment does not prohibit private individuals, companies and employers from restricting speech. The social media platforms responsible for suspending President Trump’s accounts are privately owned and operated, and they are free to limit the content on their sites without implicating the First Amendment. Thus, the First Amendment is not implicated in the decisions made by private social media platforms to suspend President Trump’s accounts.

Moreover, while the First Amendment prohibits government interference with speech that could be deemed hateful, it does not protect illegal and riot-inducing speech. As Justice Wendell Holmes, Jr. stated more than century ago, ‘[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.’ In Brandenburg v. Ohio, the U.S. Supreme Court held that First Amendment protections do not apply to speech that is ‘directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’

Employers’ bottom line

Because private companies are not bound by the confines of the First Amendment, private companies generally need not consider it when regulating the content of speech in the workplace or making employment-related decisions, such as discipline, based on an employee’s speech. Private employers may advise their employees not to speak about politics in the workplace, and they may remove postings from internal and external means of communication that involve political discussion, including the Capitol riot and suspension of President Trump’s social media accounts, without violating the First Amendment.

Employers should, however, be mindful that some state and local governments have passed laws incorporating the principles of the First Amendment to prohibit even employers in the private sector from taking action based on constitutionally protected speech. Examples include, but are not limited to, California, Colorado, Connecticut, Louisiana, Missouri, Montana, Nevada, New York, North and South Dakota, South Carolina, Washington, D.C. and Wisconsin. Still others prohibit employment action based on lawful off-duty conduct, and others based on use of ‘lawful products’, such as social media. Similarly, the National Labor Relations Act protects speech by or on behalf of a group of employees concerning their terms and conditions of employment. That protection can be lost if the speech is egregiously offensive, which is a fact-specific determination. In view of this, before an employer (especially one operating in multiple jurisdictions) restricts or takes action based on speech, it is advisable to consult an employment lawyer to fully consider the implications.

Johanna G. Zelman
FordHarrison LLP
Elizabeth M. Smith
FordHarrison LLP