No, the First Amendment Doesn’t Apply at Work—But Other Laws Protect Some Employee Speech

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Managers regularly field complaints about what employees say at work, from provocative political opinions to religious evangelism. Employees cite their constitutional right to freedom of speech guaranteed by the First Amendment. Employers wonder if they can discipline workers for their speech.

There is a clear answer: The First Amendment does not apply to non-governmental employers. However, even private-sector employers should be aware of other laws that do protect some speech at work.

Ever since the First Amendment joined the U.S. Constitution in 1791, the Free Speech Clause has provided that “Congress shall make no law … abridging the freedom of speech[.]” While the First Amendment applies not just to Congress but to all branches and levels of government, courts have long held that it does not apply to private, non-governmental actors.[1] Employers do not violate the First Amendment when they discipline or even fire workers for their speech. In fact, the First Amendment’s only role in the private sector is to protect employers, not employees.[2] For instance, states cannot restrict workplace diversity trainings, which amount to the employer’s speech,[3] and labor regulators cannot punish managers who joke about consequences of unionization.[4]

Even if the First Amendment does not limit private organizations, they should consider other laws before disciplining an employee for their speech, writing, or other expression. A few federal laws have broad effects, and many states provide additional protections within their borders.

The most important federal law for workplace speech is the National Labor Relations Act. While the statute is best known for regulating union representation, Section 7 also protects “concerted activities for … mutual aid or protection.”[5] These concerted activities can take place in non-union workplaces and without any talk of unionization.[6] The term can even apply when a single employee speaks alone, if there is an implicit appeal for coworkers’ support—even with a companywide reply-all email rant opposing a new vacation policy.[7] This protection for “concerted activities” could cover discussions about compensation, starting a newsletter or social media page, lobbying legislators, or picketing in public—unless the speech crosses the line into a “vitriolic attack” that demonstrates “detrimental disloyalty,” such as public criticism of the employer’s product “in a manner reasonably calculated to harm the company’s reputation and reduce its income.”[8]

In addition, many federal laws prohibit retaliation for certain types of speech. Title VII and other anti-discrimination laws forbid retaliation against anyone who opposes unlawful discrimination or participates in an investigation, such as by filing a charge with the U.S. Equal Employment Opportunity Commission.[9] “Opposition” can cover internal complaints or supporting others in doing so.[10] Another twenty-five federal laws shield whistleblowers who raise concerns about everything from pipeline safety to securities fraud.[11] For example, the Occupational Safety and Health Act provides that no employer may “discharge or in any manner discriminate against any employee because such employee has filed any complaint” or testified in a hearing under that statute.[12] However, many whistleblower laws apply only to specific reporting mechanisms, not to general complaints or media leaks.

Along with federal laws, more than half of the states protect some expressive or political activity by private-sector employees.[13] Five states broadly prohibit discrimination based on off-duty lawful conduct including speech, demonstrations, and other expressive activity: Colorado, North Dakota, Montana, Connecticut, and New York. Seven other states protect political activity from employer retaliation: California, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina,[14] and West Virginia. Another fifteen protect at least some form of political activity.

However, even the broadest state protections do not require free-speech zones. Employers have discretion to discipline employees so long as they avoid discrimination or retaliation. When you need guidance on workplace speech issues, Maynard Nexsen’s Employment & Labor team is here to help.

_{[1] See, e.g., Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.” (citations omitted)); Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 819 (4th Cir. 2004) (en banc) (rejecting First Amendment claims of private-sector worker fired after refusing to remove Confederate-flag stickers from his toolbox because Congress “notably has refrained from extending free speech rights to the private work force”).}

_{[2] See, e.g., Manson v. Little Rock Newspapers, Inc., 200 F.3d 1172, 1173 (8th Cir. 2000) (affirming summary judgment for the defendant-employer because “the defendant is a private entity, not a governmental entity, and thus is legally incapable of violating anyone’s First Amendment rights. Any First Amendment rights germane to this case are those of the defendant[.]”)}

_{[3] Honeyfund.com Inc. v. Florida, 94 F.4th 1272, 1283 (11th Cir. 2024).}

_{[4] FDRLST Media, LLC v. NLRB, 35 F.4th 108, 126 (3d Cir. 2022).}

_{[5] 29 U.S.C. § 157. The Act does not cover independent contractors, supervisors, agricultural workers, or domestic employees. Id. § 152(3).}

_{[6] Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).}

_{[7] Timekeeping Sys., Inc., 323 N.L.R.B. 244, 246 (1997).}

_{[8] NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464, 468-72 (1953) (“Jefferson Standard”).}

_{[9] 42 U.S.C. § 2000e-3.}

_{[10] See Craig Robert Senn, “Redefining Protected ‘Opposition’ Activity in Employment Retaliation Cases,” 37 Cardozo L.R. 2035, 2037-39 (2018); Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 277-78 (2009); Netter v. Barnes, 908 F.3d 932, 936-37 (4th Cir. 2018).}

_{[11] OSHA, “Statutes,” U.S. Dep’t of Labor, https://www.whistleblowers.gov/statutes. The Supreme Court has broadly interpreted such anti-retaliation provisions. Richard Moberly, “The Supreme Court’s Antiretaliation Principle,” 61 Case W. Res. L. Rev. 375, 416-17 (2010).}

_{[12] 29 U.S.C. § 660(c).}

_{[13] Eugene Volokh, “Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation,” 16 Tex. Rev. L. & Pol. 295, 297 (2012).}

_{[14] The text of South Carolina’s statute reads like broad statutory protection for political activity—forbidding “discharge . . . because of political opinions or the exercise of political rights and privileges guaranteed to every citizen.” S.C. Code § 16-17-560. However, courts have interpreted this statute narrowly. See, e.g., Vanderhoff v. John Deere Consumer Prods., Inc., No. 3:02-0685-22, 2003 WL 23691107, at *2 (D.S.C. Mar. 13, 2003).}