Does the First Amendment Apply to My Private Employer?

No, but some workplace speech protections exist

By Judy Malmon, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on June 14, 2024

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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 doesn’t apply to private employers, some protections exist for workplace speech under federal and state laws.

The First Amendment Restricts the Government, Not Private Employers

The right to free expression of our views and religious beliefs is a cornerstone of American democracy embedded in the First Amendment. That inviolable rule states that “Congress shall make no law… abridging the freedom of speech.”

This has been interpreted by the U.S. Supreme Court and lower courts to mean that no government action, in whatever form, may force limitation of expression or free assembly. This means that government officials cannot restrict you from an act of free speech (such as refusing to honor the flag) so long as what you say isn’t obscene or inciting violence.

However, there is no similar constitutional right in a private context, such as private sector employment. Your boss is not required to allow you to say whatever you want and may have very good reasons for restricting you. Limiting speech this way is not a First Amendment issue; it’s an employment issue. It comes down to this: You can’t be thrown in jail for peaceful protest or an unpopular statement, but you can definitely be fired. (A notable distinction is if you work for a governmental entity, which raises issues of government action.) 

A notable case in point: Quarterback Colin Kaepernick—who set off a maelstrom of controversy 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 and was not picked up by any other National Football League team. NFL team owners and general managers said they disagreed with his actions and didn’t want the distraction he would bring. By law, he was free to protest, but there were other employment consequences that were not unlawful.

Other Speech Protections in the Workplace

When you’re on the job, you’re subject to limitations, policies, and procedures. Not only may an employer 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 some restrictions even on private employers. Under the National Labor Relations Act (NLRA), an employer may not prohibit employees from speaking about work conditions, including pay. And 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 the clock, such as posting on Facebook, is generally not allowed—although beware of the ever-changing landscape and eroding digital 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.

Ultimately, it’s important to remember that freedom of speech is an important political protection to 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 for an assessment of your legal issues. 

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

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