The principle of free speech is a cornerstone of American democracy, enshrined in the First Amendment to the U.S. Constitution. It guarantees that “Congress shall make no law … abridging the freedom of speech,” basically protecting an individual’s right to express ideas, opinions and beliefs without government interference. Yet, when it comes to the workplace, this right becomes far less absolute. Employees often assume that the First Amendment protects them from being disciplined or fired for what they say, but in most cases, it does not. Understanding how free speech applies – or doesn’t apply – at work requires examining constitutional law, employment law and workplace policies.
Let’s start with a basic rule: Too many people fail to appreciate that the First Amendment restricts the government, not private employers. This bears repeating – the First Amendment only applies to the government. This means that private-sector employees generally do not have a constitutional right to free speech in the workplace. A private company can lawfully discipline or terminate workers for speech that violates company policy, harms its reputation or disrupts operations, even if the speech would otherwise be constitutionally protected in public.
In contrast, public-sector employees, because their employers are governmental entities, do have some limited First Amendment protections. However, those protections are still not absolute. Courts balance an employee’s right to speak on matters of public concern against the government’s interest in maintaining an efficient and disruption-free workplace.
This balance was articulated in the landmark case Pickering v. Board of Education (1968), where the Supreme Court ruled that a teacher could not be fired for writing a letter to a newspaper criticizing the school board, since his comments involved a matter of public concern and did not interfere with his professional duties.
Later cases, such as Garcetti v. Ceballos (2006), narrowed those protections by holding that when public employees speak as part of their official duties, they are not speaking as private citizens and therefore are not entitled to First Amendment protection. In practice, this means that government employees have limited free speech rights only when they speak as private citizens – and then only about issues of legitimate public interest.
For most American workers employed in the private sector, however, speech protections depend primarily on employment agreements, workplace policies and state laws, rather than the Constitution. Most employees are “at-will,” meaning they can be terminated for any reason that is not illegal, such as discrimination or retaliation for protected activity.
If an employee posts political opinions, controversial comments or criticism of their employer on social media, there is typically no legal shield against disciplinary action. Employers often justify restrictions on employee speech to protect brand reputation, prevent harassment and maintain professional conduct. For example, a company may terminate an employee for making racist remarks online, even outside of work hours, if the speech damages the company’s public image or creates a hostile work environment.
That said, there are exceptions that are driven by state laws, such as California and New York for example, which are beyond the scope of this article.
While the First Amendment generally does not apply to private workplaces, the National Labor Relations Act does provide certain protection for employee expression. The NLRA protects the right of employees (whether unionized or not) to engage in “concerted activities” for the purpose of improving wages, working conditions or other terms of employment.
This means that employees can discuss pay, criticize management practices or advocate for better treatment without fear of retaliation, as long as their actions relate to collective workplace concerns.
However, the protection has limits. Speech that is excessively profane, threatening or unrelated to workplace issues is not covered. The NLRB regularly adjudicates disputes over where to draw that line, particularly in the age of social media, where the boundary between personal and professional speech is increasingly blurred.
In that regard, the rise of digital communication has fundamentally changed how speech occurs in and around the workplace. Employers often monitor public posts and controversial statements (even if made after work hours) can quickly lead to employment consequences.
First, Illinois employers must recognize that there are certain protections afforded employees that are unique to Illinois law. Under the Illinois Right to Privacy in the Workplace Act, employers are prohibited from:
•Requiring employees to disclose usernames and passwords for social media accounts.
•Requiring an employee to access his or her social media account in the employer’s presence.
•Requiring an employee to invite the employer to join the employee’s social media group (e.g. friend on Facebook).
•Requiring an employee to join an employer’s own social media group.
Second, on a more general level, many organizations now have social media policies that guide what employees may share about the company or their work. These policies typically prohibit the disclosure of confidential information, harassment, hate speech or anything that could harm the employer’s reputation. Although employers have legitimate interests in protecting their brand, overly broad or vague policies may unlawfully restrict employees’ rights under the NLRA if they damper legitimate workplace discussions.
All of that being said, courts have generally sided with employers in such disputes, holding that reputational harm or workplace disruption can justify disciplinary action. Time will tell whether the pendulum starts swinging in the other direction.
Ultimately, workplace speech is shaped by a mix of constitutional principles, employment law and organizational policy. In general, employees retain opinions, but employers retain the authority to manage how and where those opinions are expressed.
This article appears in November SBJ 2025.