Recently, there has been much rumination about whether “cancel culture”—the cultural phenomenon whereby individuals lose their jobs following pressure (sometimes collective and organized) on their employers because of social media communication that rubs some people the wrong way–is a threat to Americans’ First Amendment protections. Surveying recent cases that have caught the public’s attention, this is not the case, strictly speaking. Regardless of Tweets and meme art opinions that would insist otherwise, state powers in the United States still maintain a hands-off approach to what private citizens say and write.

The social, cultural and technological shifts of the past ten years see people doing less speaking in First Amendment-protected “traditional public forums” like street corners and public parks and doing more “speaking” on the privately-owned (yet globally viewable) platforms of social media wherein government has neither the power to punish nor protect speakers from backlash.

Regardless of what the cancelled or their sympathizers may feel is fair, to be fired or face workplace discipline for social media expression is, almost without exception, legal and constitutional. How can this be?

Even before social media existed, First Amendment and labor law have long allowed that private employers have close to total power over what their employees can say at work, both proscriptively and compulsorily. A cashier at a fast-food chain may be compelled, as a condition of employment, to “up-sell” during sales transactions with a question like: “Would you like the larger size of fries with that?” Consistent failure to greet, thank, or attempt small talk with customers may result in disciplinary action or termination.

Also, workers in an at-will employment arrangement may legally be disciplined or terminated for public statements and activities made or done away from work. The annals of employment law are littered with cases of employees being fired when unpopular “incompatible activities” or speech of certain kinds are brought to employers’ attention, even if the statements or activities were legal and made or done on personal time. Legal limits apply, of course.

Just to underscore the power that private employers have in relation to intellectual freedom, I point out here that, contrary to popular belief, private employers can make attendance at political events of many sorts mandatory, provided attendees are compensated for their time. A private employer can mandate just about every sort of political “education” as a requirement for continued employment, provided the exercise doesn’t violate the National Labor Relations Act or create a situation which an employee could legally argue creates a hostile work environment related to protected status and, again, as long as the employee is paid. Just about the only things private employers can’t do are mandate that employees vote for, campaign for, or donate to political candidates or organizations.

For example, a sporting goods store selling firearms would be within its legal rights to make employees watch a National Rifle Association video lauding the Second Amendment, regardless of any employee’s beliefs about either the NRA or gun-control issues. Relatedly, that same store would be within its rights if it fired an employee who used a social media outlet to publicly complain about having to view the video.

This “Boss Power,” properly manipulated, is the engine of cancellation: though the government may not be able to censure a private citizen for private expression, private employers certainly can, and usually will, if they suspect bad press may follow publicity.

Public employees have more freedom of expression in relation to employment than those in the private sector, but perhaps not as much as is supposed. Three cases in this realm are closely related: the 1968 Pickering v. Board of Education case, the 1983 Connick v. Myers case and the 2006 Garcetti v. Ceballos case. In Pickering, the Court decided that public employees may weigh in personally on matters of public interest without fear of losing their jobs. In Connick v. Myers, the Court fleshed out that decision, clarifying that public employers must weigh whether an employee’s speech is more closely related to public concern or to private workplace grievance.

The Garcetti decision refined this one step further, with the Supreme Court deciding that a public employee opining on a matter of public concern while in the course of her official duties is not protected from discipline related to that expression if the expression is inaccurate, undiplomatic, causes mission-related difficulty for the employing agency or has some other substantive flaw.

The Pickering-Connick Test

The Connick decision established that a public employer does not have to allow an employee to publicly air workplace grievances of an interpersonal nature just because a government employee is doing the communicating, and the court may call upon an employee to show that their right to speak outweighs employer concerns about efficiency or workplace disruption.

These two decisions are the namesake of the “Pickering-Connick” test, which courts apply in First Amendment cases involving public employees.

The test can be summed up thus: “Did a public employee speak on a matter of public concern without turning it into an airing of workplace grievances?”

For example, if a town’s City Hall clerk is filmed at an environmental rally saying “I don’t think this City Government is doing enough to combat pollution,” and is fired for it, the Pickering-Connick test would likely show that the speech–about a matter of public concern– is protected and the punishment unconstitutional.

But if that same clerk said “The City Manager does a poor job managing me and my coworkers,” the Pickering-Connick test may show that discipline or termination of that employee was NOT an infringement of rights, especially if the speech resulted in a workplace disruption of some kind.

This was upheld in 2018 in the Georgia case Tucker v. Atwater, a case in which a public school teacher’s private Facebook posts criticizing “Black Lives Matter” (made “off the clock” and in a venue not related to her work) went viral and was shared with the teacher’s school administrators. When the teacher was suspended and forced to attend mandatory diversity training for the statement, she sued the County’s school superintendent for violating her First Amendment rights. The superintendent sought and was granted qualified immunity by the Georgia Court of Appeals, the Court’s decision based upon the fact that no law in the jurisdiction disallowed disciplining a teacher for their private statements. When the case was appealed, the Georgia Supreme Court declined the case, that decision premised on the argument that the teacher’s private post “interfered with the operation” of her school.

In his concurring opinion, however, Georgia Supreme Court Justice Nels Peterson expressed “grave concerns that the school officials may well have violated [the teacher’s] First Amendment rights.” The crux of his concern was one of time and venue; Peterson pointed out that before Tucker v. Atwater, “all but one of the decisions of the United States Supreme Court applying the Pickering balancing test has involved speech by a public employee either during the work day or in a manner or about a topic that implicated their employment.”

Such concerns notwithstanding, the precedent is set: social media posts of one’s personal opinions, even those made at home or on vacation (and even when one’s settings are “friends only”) can be used as the basis for disciplining public employees until some Court decision changes that.

Garcetti: Good Faith is No Protection from Discipline

Let’s visit a different hypothetical government employee: a city engineer. We’ll imagine a case in which the city employing him might be investigating the building of a new facility, based on a perceived need for more space or better geographical situation and he, perhaps wishing to save taxpayer money and city resources, sends an official memo to the city council explaining that the new facility is, in fact, not needed based on his reading of a study commissioned by his employer. If the engineer were to be subsequently disciplined because, in the estimation of his superiors, his interpretation of the information was inaccurate or because the conclusions of his official memo was not in keeping with the city’s mission or strategic goals, the First Amendment would lend his expression, however well-intended, no protection and the discipline would not be considered retaliation.

In the Supreme Court’s official opinion, Justice Kennedy wrote: “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline…. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”

In other words, if the boss disagrees with the memo and discipline results, it does not amount to an infringement of the employee’s First Amendment rights. Critics of the Garcetti decision have worried the effect this would have on whistleblowers, but no Supreme Court case since the decision has helped to clarify exactly when honest workplace concerns become whistleblowing.

While there may be ethical questions yet to work out about “cancel culture,” in most cases the law is clear: employers get to decide whether or not an employee’s latest Tweet, email or memo is grounds for termination and the First Amendment, though meant to be a shield from government overreach, is often no shield from career-altering  consequence.   

Resources for further reading: 

• ALA Speech in the Workplace Q&A: An Explanatory Statement of the ALA Code of Ethics 
• ACLU: Government Employees Get to Have Opinions, Too 
• University of Cincinnati Law Review: The Garcetti Virus 
• Wisconsin State Bar: Social Media and Freedom of Speech in the Workplace 
• CNBC: NLRB Orders Google Not to Restrict Employees’ Free Speech