Atlanta Employment Attorneys Blog
The killing of conservative activist Charlie Kirk has triggered strong reactions from both supporters and critics alike. However, the reaction of employers has not been even-handed. Employees perceived as making negative comments about the shooting have faced intense blowback; some have even lost their jobs. Meanwhile, those celebrating Mr. Kirk’s controversial positions have faced no consequences at all. The disciplining of employees who appear not to support Kirk may lead one to wonder: Can employers legally discipline employees for their personal opinions or social media posts? While some may have that ability, others may have crossed a constitutional line and engaged in an impermissible violation of the employee’s free speech rights, especially if the employer is a public one. If you or someone you know is caught up in the controversy, an experienced Atlanta employment lawyer can provide you, as a public employee, with crucial advice and advocacy to ensure your First Amendment rights are protected.
Private employers are generally not restricted by the First Amendment. Thus, the majority of those employed by private employers have no free speech protections at work. These workers remain employed only as long as the employer wants them to be, and the employer can fire them for any reason or no reason at all, including its disapproval of their online or social media activity.
Public employees, on the other hand, enjoy First Amendment protections. These employees include public school teachers. Adam Goldstein, senior vice president of strategic initiatives at the Foundation for Individual Rights and Expression, a free speech advocacy organization, told WRAL in Raleigh, N.C., that, in general, “a public school teacher in their own time, posting on their social media that’s their own personal account about things that aren’t related to school, is going to be protected by the First Amendment.”
“If it’s personal speech on a matter of public concern, that is the type of speech that is often afforded the most protections under the First Amendment, alongside political speech,” Ivy Johnson, a staff attorney with the American Civil Liberties Union, also told WRAL.
Federal Caselaw and the Pickering-Connick Test
The U.S. Supreme Court has confronted this issue in the past.
One of the key cases is 1968’s Pickering v. Board of Education. In that lawsuit, a county school district fired a teacher for writing a letter to the local newspaper criticizing the school board for prioritizing athletics ahead of academics. The Supreme Court decided that the law must “balance” the interests of a public employee to comment on matters of public concern with the public employer’s interest “in promoting the efficiency of the public services it performs.”
Fifteen years later, the court decided Connick v. Myers, which clarified the court’s decision in Pickering. From these two decisions came the court’s Pickering-Connick test. That test has two components. First, courts must determine whether the public employee spoke about a matter of “public concern,” which is to say a matter of substantial societal significance or importance. Second, if the employee’s speech covered a matter of public concern, then courts apply the balancing framework the Supreme Court created in the Pickering case, where the judge must weigh the worker’s free speech interests against the employer’s interest in an efficient workplace free from disruptions.
In 1987, the court applied the Pickering-Connick test in a case called Rankin v. McPherson and found in favor of a government employee, Ardith McPherson, who was fired for expressing sadness that John Hinckley, Jr. had failed in his attempt to assassinate President Ronald Reagan and her hope that a second assassin would be successful. When it comes to discussions of matters of public import, the government is not the arbiter of which opinion is valued most. Those cheering on Charlie Kirk as a Christian Martyr have no greater free speech rights than those expressing the potential irony of his death due to his pro-gun opinions, or even the celebration of this death, as some reports suggest.
Moreover, even undisputedly problematic comments are potentially protected. Both the Court of Appeals and Justice Powell of the Supreme Court noted in the McPherson case that Ms. McPherson’s comments about President Reagan were “undisputed[ly]… ill-considered” but nevertheless shielded by the First Amendment.
As you can see, these affected employees spanned a variety of professions. In Pickering, the employee was a high school science teacher. In Connick, the plaintiff was an assistant district attorney. In the McPherson case, the public employee was a data-entry worker for a Texas constable. Some of these comments — namely, those Ms. McPherson made — are similar to those triggering terminations and other punishments today. Freedom of Speech, as a cornerstone of the freedoms enjoyed in this country, has long tolerated even the most disagreeable opinions, especially in politically charged matters. Whether you loved Charlie Kirk or hated him, you should be allowed to say so. And the government cannot tell you how to feel.
These cases show that both state and local public workers have certain First Amendment protections against punishment for speaking out. This reality should put public employees who work for employers such as the City of Atlanta, Fulton County, Cobb County, and the University System (among others) on notice that they have free speech rights in this area and that being punished for speaking out may be a violation of those constitutional rights.
If you are a public employee and have been disciplined for exercising your First Amendment rights, you should contact legal counsel as soon as possible. The knowledgeable Atlanta employment law attorneys at Parks, Chesin & Walbert are here to help. Our team has extensive experience litigating a full array of employment law issues and can assist you effectively with your First Amendment case. Contact us through this website or at 404-873-8048 to schedule a consultation today.