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Free Speech, Social Media, and Keeping Your Job: What are the Rules? – Mary T. O’Sullivan
By Mary T. O’Sullivan, MSOL, contributing writer on business and leadership
“The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Justice Thurgood Marshall
The conflict between free speech and employers’ social media policies is a strained legal and cultural issue in the current post-Charlie Kirk workplace environment. Employees generally believe that the First Amendment’s protection of free speech protects them from disciplinary action for their speech—including on personal social media accounts. However, this is a huge misconception: “The First Amendment does not apply to non-governmental employers. Employers do not violate the First Amendment when they discipline or even fire workers for their speech”, states Goldberg Segalla Law Firm. Private organizations can set their own standards for workplace conduct, and they may discipline employees for posts that disparage the company, disrupt workplace harmony, violate stated policies, or address controversial cultural events—even when speech occurs off the clock.
At the same time, legal experts and advocates warn that workplace speech regulation has its limits. Certain types of speech remain protected by certain federal or state laws, such as the National Labor Relations Act (NLRA), which guards employees’ rights to discuss their working conditions—even on social media. Furthermore, statutes in some states (e.g., California, New York, and Colorado) protect lawful off-duty political activities including social media posts, restricting how and when employers can take action for employees’ online expression. Minnesota, Connecticut, Louisiana, South Carolina, and Wyoming are among the states that specifically protect off-duty political activity, unless the activity directly impacts the organization itself.
In the turbulent wake of Charlie Kirk’ recent death, the boundaries of free speech, organizational values, and employee discipline have been greatly tested across the United States. In a “hyperconnected” world where personal expression reaches global audiences instantly, employers now face immense pressure to respond to employees’ social media public commentary—particularly when it touches on issues such as political violence. The firing of employees for social media posts about Kirk’s death illuminates both the influence and perils of speech, and how American workplaces are treading the fine line between personal rights and organizational responsibility.
Within days of Charlie Kirk’s killing, universities, healthcare organizations, and private companies began disciplining—and often firing—employees who posted content seen as disrespecting the assassination. According to a USA TODAY analysis, “more than 100 people have faced repercussions for remarks after the Sept. 10 slaying of Charlie Kirk” ranging from private universities, public teachers and principals to hospital staff. The scale and speed of these consequences reflected both the polarizing nature of the event and the increased visibility created by posting on social media. Emotions run high, but are the employers in the right?
Many examples exist now where the organization’s response underscored a priority for upholding its standards over the defense of individual speech. Some organizations justified firings by referencing a commitment to respect, dignity, and professionalism—especially critical in service industries where public trust is key.
However, in an “at will state”, private employers can fire employees for any reason. Attorney Marjorie Mesidor commented to CBS News, “A private company can generally fire an employee for public comments, even political ones, if those comments are deemed to harm the company’s reputation, violate workplace policy or disrupt the business”. Vanessa Matsis-McCready, an HR executive, added, “Employers are very mindful of what’s being associated with them, and they are trying to be as apolitical as possible… In today’s climate there is very little tolerance for that.”
Posts that “cross the line” often involve promoting acts of violence, using discriminatory language, or engaging in harassment or bullying online. As employment attorney Thomas Feiter notes, “Racist, sexist, or homophobic content is an immediate red flag… These posts can create liability issues for employers under hostile workplace laws”. In other words, when an employee’s statement, even outside of work, is generally viewed as sanctioning any kind of harm, organizations can make the case that it imperils workplace safety or violates anti-discrimination law.
These actions by employers, however, have begun an intense national debate over the extent of employer control and the definition of free speech in our digital era. The firings have polarized public opinion, with some stating that firings or disciplinary actions are needed to uphold organizational values, while others warn of the deterioration of free and open debate.
The American Civil Liberties Union (ACLU) has repeatedly warned against organizational overreach, maintaining, “The answer to speech we do not like is more speech, not enforced silence” Yet facing the risks of incitement (as in protests located just outside of the business premises), harassment, and public backlash have led many organizations to err on the side of exercising employee restraint.
With many high-profile firings, legal experts urge organizations to exercise “transparency and fairness”. Discipline for online speech should be based on clearly articulated policies that are enforced and communicated on a consistent basis. As the Society for Human Resource Management (SHRM) advises, “Employers must create clear, fair, and transparent policies that respect free expression while prohibiting harassment, hate speech, or threats that might destabilize the workplace”. Workplace investigations into objectionable social media should document genuine disruption—not just controversy or embarrassment.
For employees, legal experts warn, “Workers often end up surprised to learn they’ve agreed to represent their company’s values even in their personal online activities”. The digital world has collapsed the wall between private and professional life, placing a premium on discretion and awareness, according to the CPA Practice Advisors website.
The firing of employees for social media posts about the death of Charlie Kirk reveals an inflection point for American free speech and employment law—a moment when the country must deal not only with what is said or posted, but also with the responsibilities of “digital citizenship”, community standards, and organizational ethics. Meanwhile, the legal consensus remains that “A private company can generally fire an employee for public comments, even political ones, if those comments are deemed to harm the company’s reputation, violate workplace policy or disrupt the business”. Employees and employers must all remember in a connected world, words have consequences. Both employers and employees must tread this new reality with clarity, caution, and greater responsibility. The public forum is public, and depending on who is offended, the First Amendment may not apply.
“An employee is not entitled to unrestricted free speech in the workplace under the U.S. Constitution. Employers should carefully craft policies regulating acceptable and unacceptable forms of speech in the workplace.” Goldberg Segalla Law Firm
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Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas.
Member, Beta Gamma Sigma, the International Honor Society.
Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University.
Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.