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The First Amendment On The Job: Employment & Free Speech

Most people in the U.S. learn about the Constitution’s First Amendment in school, and then rarely ever have cause to remember it again. However, its tenets are important later in life, when it comes to the types of speech that are protected and the places in which that speech is protected. The workplace is always a grey area. If you step out of line, you may be terminated or otherwise disciplined—though there are still regulations about how far your employer can go in that regard. Learn more about free speech in the workplace.

Free Speech Is Generally Limited

While everyone has the right to their own opinion and to different ways of expressing it, there are limits, many of which are found in the workplace. The First Amendment is often interpreted by the average person as allowing any kind of speech, anytime, anywhere. But this is simply not the case. There is essentially no right to freedom of speech in a private workplace. The text of the amendment clearly states that “Congress shall make no law … abridging the freedom of speech”—in other words, that the government will be restricted from “abridging the freedom of speech”, but not the private sector.

It is important to keep in mind, however, that most of the time, with rare exceptions, you cannot be disciplined for what you say and believe off the clock. In some cases, your discussions may even be protected. For example, the National Labor Relations Act forbids an employer from shutting down discussions or complaints about working conditions or wages, as this can constitute unlawful restraint of trade. The restrictions generally cease, unless your conduct is directly detrimental to your employer, when you clock off.

Other Laws Matter

While political questions like candidates’ fitness is perhaps the most common bone of contention regarding free speech issues, there can be legal questions over anything from religious beliefs to support for social movements. In the workplace, at least in South Carolina, an employer is entitled to restrict speech if it does not conflict with any existing anti-discrimination law, even though the Constitution does not provide any protections itself.

For example, South Carolina has laws in place prohibiting termination of employees if solely based on political opinion. This is, in effect, an anti-discrimination law that would seem to protect free speech. But if an employee, say, spent lunchtime proselytizing to their coworkers or complaining about people who did not belong to their religion, that might be grounds for dismissal as well. While she has a right to her religious beliefs, she does not have the right to spread them at work. When dealing with speech questions, it is critical to ask oneself whose rights are being exercised and whose might be suppressed.

Ask An Employment Law Attorney

While free speech issues can be difficult to navigate, both as an employee and an employer, having an employment law attorney on your side can help ease your mind considerably. Attorney A. Christopher Potts is happy to help answer any questions you have about a potential case and will work with you to try to obtain the fairest result possible.

Contact Hitchcock & Potts today to schedule an appointment.

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