Does the First Amendment Apply to My Private Employer?

What exactly are the parameters of taking a stand at work? Is your speech in the workplace protected, even if your boss doesn’t like it? The answer is nuanced. While the First Amendment to the U.S. Constitution doesn’t apply to private employers, employee speech is entitled to some protections under federal and state laws.

If you need legal advice regarding your First Amendment rights and whether your workplace speech is protected, speak with an experienced employment lawyer in your area.

Free Speech Rights Under the First Amendment

The Bill of Rights to the U.S. Constitution contains the First Amendment, which states, “Congress shall make no law… abridging the freedom of speech.” The U.S. Supreme Court and lower courts have interpreted the First Amendment to mean that no state action may limit freedom of speech, expression, or assembly. The First Amendment restricts the government, not private employers.

When the government is your employer, U.S. Supreme Court precedent provides that the Constitution protects your speech when you speak as a private citizen on a matter of public concern and your speech rights outweigh the government’s rights as an employer.

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Limitations of the First Amendment in Private Employment

Private sector employees do not have the same First Amendment protections when they work in private employment as their public sector counterparts. For example, your boss is not required to allow you to say whatever you want and may restrict you.

It comes down to this: You have constitutional rights and can’t be thrown in jail for peaceful protest or an unpopular statement, but those actions can result in an adverse employment action.

A notable case in point: Quarterback Colin Kaepernick — who set off a maelstrom of controversy on social media when he made his kneeling protest against police brutality during the national anthem in 2016 — opted not to renew his contract with the San Francisco 49ers. No other National Football League team picked him up. NFL team owners and general managers said they disagreed with his actions and didn’t want the distraction he would bring. Under federal law, he could protest or engage in political activity, but other employment consequences were not unlawful.

Employer Policies on Employee Speech

You’re subject to limitations, policies, and procedures when you’re on the job. An employer may restrict certain speech at work—in some circumstances, it’s required. Discrimination and harassment laws, privacy rules respecting medical and consumer information, and prohibitions on insider trading are all situations in which specific speech must be curbed. Additional restrictions, such as nondisclosure of company trade secrets, may be agreed to contractually.

That said, there are speech protections in the workplace, even for private employers. Under the National Labor Relations Act (NLRA), an employer may not prohibit employees from speaking about work conditions, including pay, which is considered a protected concerted activity. The National Labor Relations Board (NLRB) is the independent federal government agency that enforces the NLRA.

While an employer may have reason to prefer that employees not say negative things about their company, broad policies restricting critical statements have been found to violate the NLRA. Additionally, an employer cannot retaliate against an employee for filing a workers’ compensation claim or a complaint of workplace discrimination or harassment.

Similarly, employer interference with what an employee says or does off-duty, such as posting on Facebook, is generally not allowed. You must, however, be aware of the ever-changing landscape and eroding boundaries between work and non-work. As employees take their personal devices to work and end their day checking email on a work laptop in bed, it becomes less clear when they are really off the clock.

Navigating Free Speech and Employment Rights

Although the First Amendment does not apply to private employers, you do enjoy some speech-related employment rights through other laws. For example, under state and federal whistleblower laws, private sector employees receive protection from retaliation for reporting wrongdoing.

Employees generally have the right to speak on subjects related to:

• Wages
• Workplace safety and conditions
• Employer or employee wrongdoing
• Some forms of religious expression
• Opposition to discrimination and harassment
• Accommodations for disabilities

An employment lawyer can help if you have specific questions about how the First Amendment applies to your private employer.

Find Experienced Legal Help

Ultimately, it’s important to remember that freedom of speech is an important political protection in our democratic society, but it doesn’t mean you get to say anything you want, wherever you want. If you think your First Amendment rights have been infringed, you should ask for legal advice from a civil rights or employment attorney. They can help you with your legal issues.

For more information about this area, see our overviews on employment law for employees and civil rights.