The First Amendment guarantees American citizens the right to free speech, but this right has its limitations in private employment. A couple weeks ago, the First Amendment became the center of attention when a Duck Dynasty cast member, Phil Robertson, made negative remarks regarding homosexuality. Even more recently, the cast member made remarks about marrying teenage girls. In reaction to Phil’s remarks, A&E, the network responsible for the show, temporarily banned Phil from the show. This sparked a national conversation regarding the interplay between the right to free speech and the rights of private employees.
American citizens generally have the right to free speech, which is guaranteed by the United States Constitution. However, the Constitution does not necessarily provide private employees with the right to free speech while they are acting within the scope of their employment. Therefore, private employers may be able to place limitations on an employee’s speech while at work. For example, stores like Target or Walmart have the ability to limit the speech of their employees while the employees are assisting customers. Otherwise, employers would have limited control over their businesses.
However, private employers should use caution when disciplining or terminating an employee for his or her speech. Federal and state laws prohibit employment discrimination based on race, national origin, religion, sex, disability, and various other protected categories. The law also prohibits employers from retaliating against an employee who complains about discrimination. Therefore, depending on the nature and topic of the speech, a terminated employee might have a claim for discrimination or retaliation. Additionally, a terminated employee may have a claim under the NLRA, which provides employees with the right to collectively discuss working conditions.
This area of law is extremely complicated and the outcome various based on the facts of the case. Any employee terminated for his or her speech, should consult with an employment lawyer. Also, an employer seeking to terminate an employee should consult with an employment attorney and consider the potential public criticism attached to such an action, similar to that experienced by A&E.
The information contained in this website is not legal advice and it is not intended to be legal advice. You should consult with a licensed attorney if you believe that you may have a claim or if you have a claim against you.