President Trump’s remarks that NFL owners should fire players who chose to kneel during the national anthem and White House press secretary Sarah Huckabee Sanders’ statement that Jemele Hill’s tweets disparaging Trump were a “fireable offense” pose an important question: can a private-sector employee be fired based on his or her political speech? The simple answer is yes; an employer may impose restrictions on speech relating to politics and decide to terminate employment based on expression of such speech, absent any specific state statutory protections or a specific contractual agreement. In fact, employers are able, and have been encouraged, to limit employees’ speech relating to politics and topics of public concern, with few statutory restrictions.
Despite the common misbelief that American citizens have an undeniable right to freedom of speech, due to the state action doctrine, the First Amendment protections only apply against government interference, which, conversely, allows private citizens and organizations to limit the speech of other citizens. Moreover, in the United States employment relationships are presumed to be “at-will,”[1] allowing employers to terminate an employment relationship without cause, unless otherwise limited by a statute, public policy, or an agreement between the parties. Since speech by private employees is not protected by the Constitution and employers may terminate employees without cause, absent any additional statutory or contractual protection, private employees may be fired for saying something with which their employer does not agree.
While there are some existing statutory protections for employee political activity, these statutes are extremely narrow in scope and mostly serve to protect employees’ ability to vote. The only federal law that provides some speech protections for private employees is the National Labor Relations Act; however, this protection is far from adequate because it only covers political speech relating to terms of employment, including wages, hours and union rights.
Existing state statutory protections for political speech and activity vary widely in substance and scope. Connecticut has the most favorable statutory protection for private employee political speech because the statute bars employment discrimination based on any exercise of rights guaranteed by the First Amendment. The statute intends to protect employee speech at the same level of the First Amendment, thereby allowing employees to express thoughts and opinions relating to public concern. However, there is a crucial exception to this safeguard: employee speech relating to public concern is not protected when it “substantially or materially interferes with the employee’s bona fide job performance or the working relationship between the employee and employer.”[2] This caveat carves out a strong argument for employers to defend retaliations or terminations based on an employee’s political speech, particularly in the entertainment industry.
While the lack of protection for political speech in American employment law is problematic for all private employees, these limitations are particularly burdensome for on-air employees in the entertainment industry. On-air personalities are generally hired for their expertise, influence, and unique perspective. Networks encourage thought-provoking commentary and debate by news anchors, TV show hosts, and sportscasters, such as Jemele Hill, because stimulating discussion increases viewership and audience engagement. These occupational expectations place Hill and her colleagues in a precarious position: these employees are expected to express interesting opinions on current events and controversial topics to increase viewership, while also not being too controversial as to alienate viewers. With diverse audiences and an increasingly polarized political climate, these entertainers are constantly walking a fine line and are at risk of unemployment for either being too boring or too provocative.
The emergence of social media has revolutionized the way speech is expressed, raising new questions for the employer-employee relationship. Many on-air employees maintain social media accounts to communicate with the public, expounded upon topics from their respective broadcasts, and promote past and future content and engagements. Since their online identity is so intertwined with their professional performance, it appears that posts on public social media accounts are made ‘on the job.’ However, because of the ever-present nature of social media, any post made by an on-air employee, made on a public or private account, has the possibility of reaching millions of people, offending potential viewers and substantially interfering with the employee’s job performance. If on-air personalities cannot express their genuine opinions on public life while on screen, on social media as a public figure, or as a private citizen, these individuals are left with minimal opportunity to contribute to public discourse in a meaningful or impactful way without risking their employment.
This silencing of employees is unsettling. American citizens watch these celebrities on television and follow them on social media to learn about current events and develop their own thoughts. Allowing employers to limit these influential individuals’ ability to contribute to public discourse, is a violation of core American values. Though at times frustrating and contentious, political speech is a form of expression of upmost value in American society because it allows for a strong and functioning democracy. The recent suggestions by the Trump Administration that certain on-air employees should be terminated for expressing their opinions about public life sheds light on the overall lack of protection that these private employees enjoy both within and outside of the workplace.
[1] With the exception of Montana.
[2] Conn. Gen. Stat. § 31-51q.
Chloe Kaufman is a J.D. candidate, 2019, at NYU School of Law.
Speaking About Politics: A Fireable Offense?
