EntertainHR: Can Employers Do That? The Limits of Free Speech

Public debate about the Israel-Hamas war demonstrates that Americans have strong, and often divergent, views on important social and political issues. Believing that their right to express those views is firmly grounded in the First Amendment, celebrities and high-profile figures are freely expressing highly controversial opinions through a variety of means – social media, signs, public interviews, podcasts, rallies, petitions, and even on their clothing. But, many are learning the difficult lesson that the “right” to free speech does not mean that they are immune from every consequence when they express themselves.

For example, Elon Musk, the multi-billionaire owner of X (formerly Twitter), recently learned this lesson himself. After he made several highly controversial social media posts that many viewed as antisemitic, multiple advertisers withdrew their business from X, a move that Musk asserts was an attempt to “blackmail” him into capitulating to their views. Susan Sarandon also suffered the consequences of statements she made during a pro-Palestinian rally in New York City when she was dropped by her talent agency and lost an upcoming film role. Similarly, Melissa Barrera was fired from the Scream franchise because of reshared posts decrying Israel’s actions in the current war and claiming that facts about the Holocaust were distorted. And a few Ivy League law students recently had job offers rescinded after they signed an open letter supporting Hamas.

Why aren’t these individuals protected by the First Amendment’s declaration that free speech is an immutable right? When considering free speech issues, we often think of Evelyn Beatrice Hall’s famous quote, “I disapprove of what you say, but I will defend to the death your right to say it” (which she ascribed to Voltaire) as a quintessential summation of the rights encapsulated in the First Amendment.  

The First Amendment says that “Congress shall make no law … abridging the freedom of speech….” As courts have consistently made clear, the reference to “Congress” limits First Amendment protection to government action. It does not prohibit private actors – like movie studios and talent agencies – from making employment-related decisions based on an employee’s – or actor’s – speech. Even in the public arena, the First Amendment only protects speech related to “matters of public concern.” As Justice Oliver Wendell Holmes, Jr. made clear more than century ago, “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”  Thus, the First Amendment does not protect hate speech – like that associated with antisemitism and islamophobia.

Nor is the right to free speech implicated by the actions of social media platforms that choose to block users for their speech, a private corporation’s decision to withhold business from X, or a private university’s decision to expel students for their speech.  For example, recently, the First Circuit Court of Appeals and a judge for the National Labor Relations Board separately ruled that Whole Foods did not violate the law when it enforced a dress code policy that prohibited its employees from sporting “Black Lives Matter” garb at work.  Thus, private entities are generally free to disassociate from individuals whose speech they find offensive.

There are, however, exceptions to this general rule. The National Labor Relations Act, for example, makes it unlawful for employers to discipline employees who are engaging in protected concerted activity, such as joining together to address issues like wages or working conditions.  Even facially neutral workplace rules may be deemed unenforceable, if they are shown to have a disparate impact on a particular protected class of employees. 

A few state and local governments – California, Colorado, Connecticut, Louisiana, Missouri, Montana, Nevada, New York, North and South Dakota, South Carolina, Washington, D.C., and Wisconsin – have also passed laws incorporating the principles of the First Amendment into non-governmental actions, prohibiting employers from taking actions based on an employee’s lawful off-duty conduct, or the use of “lawful products,” such as social media.

Elon Musk can choose to say what he wants, celebrities can express their views freely, and private sector employees can take to social media and attend rallies, but they are not insulated from the consequences of the views they choose to tout. Even where the right to free speech does apply, hate speech is not protected. So, can employers do that? Yes, they can.

Elizabeth Smith is a counselor, and Johanna Zelman is a partner at FordHarrison.

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