“President Trump is a Big Fat Idiot” or, for that matter, “Secretary Clinton is a Sore Loser.”
Let’s suppose you see one of your employees tweeting one of these expressions on Twitter during non-work hours from a personal account.
Can you discipline or even fire your employee over that tweet?
That, in essence, is at the heart of an issue that has been circulating in the sports pages (and in the President’s press briefings) over the last week due to the tweets of ESPN Sportscenter Anchor Jemele Hill from her personal account that were critical of the President.
The New York Times, in fact, ran a story on Saturday discussing the legal ramifications; it was nice to be quoted in the article.
While that article does a good job of summarizing the law in part, there’s a bit more to the story that is useful exploring (however briefly) in a blog post.
First off, people do not generally have a First Amendment protection for things that that they say that their employer finds out about.
Say you go to a white supremacist rally in, oh, Charlottesville and your employer finds out about your speech at the rally. You can be fired because of that generally.
But but but.
A state like Connecticut has a law that says that gives employee a right to sue their employer if the employer disciplines or fires the employee because of that employee exercised their free speech rights under both the First Amendment to the U.S. Constitution, AND the Connecticut Constitution.
Importantly, the speech has to be of a matter of “public concern” and courts will look to see if the person is speaking in his or her capacity as a concerned citizen; criticisms of your own personal workplace will often times not satisfy this standard.
Political speech is almost always the type of speech that courts will consider of a “public concern”.
The Connecticut Supreme Court said in 1999 (not 2015 as The New York Times indicated) in Cotto v. United Tech. Corp. that Connecticut’s free speech statute applied to speech made at an employer’s premises.