The laws about the Free Speech clause of the First Amendment are pretty straight forward but not all understand them, especially when you add social media speech to the mix and instances where someone is outed for their participation in a racially-charged political rally as we saw in Charlottsville, Virginia this weekend.
Following the White Nationalists parade that took place in Charolottsville, Virginia, there is a concerted effort to identify and report participants to their employers. Arguably, these folks participated in it with awareness that there would be cameras, counter-protestors, news crews and the like there and their faces were uncovered and exposed.
Still, there remains confusion and hesitance among some over the campaign to report participants in a parade associated with hate out of fear the White Nationalists’ rights might be trampled upon.
Not so of most employees, says Tom Spiggle of the Spiggle Law Firm in Arlington, Va.
“First Amendment protections only apply to government workers,” he explains. “So, if you work for the federal government, or, for instance, a sheriff’s office, you have First Amendment rights. If you work in the private sector, you don’t have any constitutional free-speech rights.”
This means your boss can indeed fire you for being in a White Pride or Neo-Nazi Parade but they could also do it if you participate in a Black Lives Matter or Human Rights movement parade as well.
“In many, perhaps most, instances, a private employer can legally fire an employee for his or her speech, no matter the content,”Spiggle adds. “It is, however, a double-edged sword. In most states, you can be legally fired for attending a white supremacist rally or for attending a civil rights march.”
The laws vary by state.
“Four states, California, Colorado, North Dakota and New York, have laws that disallow employers from firing employees for lawful off-duty conduct,” he counsels. “Arguably these laws would not protect an employee from participating in a violent rally.”
Some rallies are protected even among private employers — that’s in the case when the worker is protesting workplace rights.
There are “national and broad protection is speech that involves ‘concerted workplace activity,’ for instance, speech about pay or workplace conditions,” which, according to Spiggle ” includes speech outside of the workplace and on social media.”
But again…the speech protected here by the National Labor Relations Board has to do with workplace specific conditions.
Also, as some commenters have said, a lot of employers have clauses in their Employer handbooks which give them broad leeway to terminate an employee that violates code of conduct that includes tarnishing the employers brand.
They could also expose the employer to liability if the worker had a job of issuing permits, services, or other benefits on an equal basis and it could be construed that someone was denied in the past based on their race, ethnicity or religion because an exposed Neo-Nazi handled their case.
So the long short of it is…if you insist on being a White Nationalist and participate in a public march with news, cameras, opponents and the like present, be prepared to not have a job on Monday.
This outings may retreat more of them back into hiding behind the comfort and security of their computer screens.