Hearing about “cancel culture,” people losing their jobs because they clicked the Like button on a Facebook or Twitter post, or were recorded on someone’s cellphone a decade ago dressed in a politically incorrect Halloween costume, might make some wonder exactly where their rights as a private individual end and begin when it comes to their employment.
It doesn’t seem fair that your employer can punish you for your personal social media activity or something you say or do outside of work, especially when the activity has nothing to do with your job. What about the constitutional right to free expression, you might ask. Isn’t my non-work-related speech as a private citizen protected in America?
But there’s the rub. Many people don’t realize that First Amendment rights, like all constitutional rights, only apply to government activity and only need to be recognized by government actors. Which means under most circumstances, you can’t be arrested for your speech if you’re not otherwise breaking a non-speech-related law.
Many Americans erroneously interpret “freedom of speech” to mean that they can say anything, anywhere, any time, and they will be immune to any negative consequences. Not so. Private entities do not need to respect anyone’s free-speech rights, which is why you can’t lawfully stage a protest inside a shopping center or any other privately owned facility. And private employers don’t have to tolerate employee speech they don’t like, inside or outside the workplace.
Private Versus Public-Sector Employees
Most states have “at-will” employment laws, which means that you can end your employment with an employer at any time, without notice. Conversely, your employer may also end your employment at any time for any reason, as long as the reason for your termination does not violate well-defined anti-discrimination laws.
Your employer technically can’t fire you or discriminate against you for your race or religion, gender or pregnancy, sexual orientation, age, disability, and several other narrowly defined characteristics. As long as they are not doing that, they can terminate you for any reason at all, no matter how trivial and no matter how unfair-seeming.
They can terminate you for posting something on social media they don’t like. They can fire you if your boss doesn’t like your personal politics or your private political activities, even if you never bring that into the workplace. And it’s perfectly legal.
Public employees, on the other hand, because they are employed by government entities, have more leeway than private sector employees when it comes to off-the-job speech and political activity. The general rule, which has been refined by the courts, is that government employee speech made outside of work that is related to “matters of public concern” is protected and an employee should not be sanctioned for it unless it interferes with their government role.
Where it gets thorny for the employee is when the extracurricular speech concerns their job in some way or the nature of the work they are involved in within the government. They can’t trash their organization, boss, or coworkers on Facebook with impunity. Public employees also can’t freely engage in speech on the job, even on matters of public concern, if that speech activity interferes with or compromises their professional role in some way.
But regardless of these narrow exceptions, government employees undoubtedly have broader rights than private sector employees when it comes to being politically active or outspoken, on social media or anywhere, outside of work. (Moreover, they are often protected by unions which make it difficult to sanction them for all but the most outrageous behavior.) These protected employees include professors and other staff at public universities, which many don’t typically think of as “government” employees.
What Illinois and Other States Say About It
Most states have laws that protect employees’ voting rights; in other words, prohibit an employer from pressuring workers to vote one way or another or refrain from voting. But these laws specify voting in particular, not other outside political activity or social media activity.
Because of the seeming unfairness of targeting a person’s non-work-related political affiliations and activities in depriving them of a livelihood, a handful of states and D.C. have passed laws barring private employers from discriminating against workers based on which political party they belong to. So if your boss is a Democrat and you’re a Republican, or vice versa, you can’t be fired just because he or she doesn’t like it—provided that your political views don’t interfere with your ability to do your job or become a disruption at your workplace.
The impetus behind these laws was likely the idea that it discourages participation in the political process if people fear professional repercussions from aligning with a particular party, which is not what we should want as a society.
Here is what current Illinois law says about the subject, according to Workplacefairness.org:
“…[A]n employer may not maintain records of an employee’s off-duty political activities unless the employee submits hard-copy records to the employer and/or otherwise authorizes the employer’s collection of such records. Illinois also forbids employment discrimination or retaliation for an employee’s off-duty use of “lawful products,” which could arguably include social media platforms such as Facebook.”
Here are some examples from other states:
Employers may not prevent an employee from participating in the political arena in any capacity, direct the political activities or affiliations of an employee, or threaten to discharge an employee for engaging or refusing to engage in certain political activity.
Employers may not discriminate against employees because of their off-duty, off-site political activities, with the exception of activities that result in a conflict of interest with an employer’s business interests.
District of Columbia
Employers may not discriminate against employees based on their affiliation with or support for any political party.
Employers may not discipline or discharge employees for exercising their First Amendment rights, with exceptions for activity that “materially” interferes with an employee’s job performance or working relationship with the employer.
Since most of these laws were likely drafted before the explosion of social media, it’s unclear whether they apply to social media posts or “viral” videos. And of course, if there’s one thing I’ve learned since going to law school, it’s that laws are only as strong as their enforcement, and many laws are not enforced.
While Connecticut’s language about “exercising First Amendment rights” might extend to wearing an allegedly offensive costume or tweeting/posting comments on social media sites, California’s and Illinois’s statutory language specifying “political activities” may offer less protection. There is a great deal of speech that does not fit the technical definition of “political activity.” It would take a novel free-speech lawsuit in these kinds of states to settle the matter.
Moreover, New York’s exception for “activities that result in a conflict of interest with an employer’s business interests” could be construed so broadly as to essentially render the protection meaningless. An employer could claim that almost anything that ostensibly brings embarrassment upon its business is a conflict of interest.
With this patchwork of state laws and the rise of cancel-culture, some legal observers have called for Congress to amend Title VII of the federal Civil Rights Act to extend anti-discrimination protections currently applicable to race, gender, and religion to personal and political viewpoint. But with the current politically charged and acrimonious state of things in this country, frankly I can’t see that happening any time in the near or distant future.
Here are some useful sources for workplace voter/political discrimination laws by state: