Can an employee really post that on social media?

This blog is not legal advice and cannot be relied upon as such.  Instead, the intent is merely to heighten employer awareness of some of the risks involved in regulating employee speech so they can seek advice from legal counsel before taking action.

Perhaps more than ever in America’s history, the confluence of polarized politics and ubiquitous social media is leading to an explosion of controversial published opinions about current events.

In the wake of the September 25, 2025 assassination of Charlie Kirk, hundreds of employers in both the private and public sectors have disciplined, suspended and terminated employees for social media posts seen as celebrating or trivializing his death, promoting violent extremism, or taking unpopular political positions.

So what are the employer and employee rights regarding employee posts on social media platforms and other employee speech?

Public sector employees

Pickering v. Board of Education (1968) is the United States Supreme Court’s landmark case establishing the rights of public employees and their employers with regard to freedom of speech under the First Amendment to the U.S. Constitution, which.

In that case, a public high school teacher, named Pickering,  was fired for insubordination after sending a letter to the local newspaper criticizing the school board and superintendent for prioritizing funding for athletics over academics. 

The school board found that Pickering’s statements were unfounded and untrue and that his letter was detrimental to the efficient operation of the district. 

Pickering sued the school board, claiming the First Amendment protected his right to express his opinion on the district’s finances and priorities.  His lawyers alleged that public employee speech is protected unless it is knowingly false or made with reckless disregard of whether it is false or not.

The First Amendment prevents the government from restricting expression.  Since the school district was a governmental entity, Pickering argued that it cannot restrict his expressions of fiscal disapproval.

The state courts supported the board of education and said Pickering owed a duty of loyalty to the school as a public employee and that his firing was justified in the interest of efficient operation of the district.  They upheld his discharge. 

Pickering appealed his case to the United States Supreme Court, which created a balancing test to determine, on a case-by-case basis, when public sector employee speech is protected by the First Amendment.

The high court wrote that the government does have some power to restrict employee speech, but it is not absolute.  It provided some factors involved in the balancing test. 

For example, firing a public employee for criticizing management would be improper where the relationship between the employee and the level of management was so distant and that it would be unlikely to result in disloyalty or co-worker disharmony.  The school board had not shown that the letter had caused any problems for the district.  The court also stated that allocation of funding in a school district is an important public concern and that the public should be aware of teachers’ opinions on the subject. 

“The problem in any case,” Justice Thurgood Marshall wrote, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 

The Pickering balancing test is still the public sector standard to determine whether an employee’s speech is protected by the First Amendment.  The high court found that the contents of Pickering’s letter didn’t impair the efficient operation of the district, were not reckless or knowingly false, and therefore were protected by the First Amendment.  The district was compelled to reinstate Pickering to his teaching position. 

The high court has clarified in later cases that public sector employee expression not related to matters of political, social or other community concerns is not protected and can subject employees to discipline.

And there is no First Amendment protection when public employees make statements pursuant to their official duties, even if the statements are about matters of public concern.  They must be acting independently of their positions as citizens to enjoy the protections provided by the Pickering balancing test.

In summary, although a public sector employer cannot prohibit or penalize employee expression to the extent a private employer may, if expression such as social media does not relate to a matter of public concern, the First Amendment does not apply.  Likewise, if the employee’s social media post is made under the guise of official duty, it is not protected.  The Pickering balancing test applies only to public employees acting as private citizens on subjects of public interest.

The private sector

The First Amendment does not apply to private sector employers because it restricts governmental action – not private action.  But that doesn’t mean that employers have free rein to discipline employees for social media posts or other communications.

Social media posts or other speech may be protected by the National Labor Relations Act (NLRA) anti-discrimination laws, state and local laws, whistle-blower laws or collective bargaining agreements.  

The NLRA protects “concerted activity” between two or more employees who are acting together for mutual aid or protection or in furtherance of improvement of working conditions.  This can include use of social media to discuss work-related or union-related matters with co-workers or union officials.  Disciplining employees for protected concerted activity is illegal – it just is not a First Amendment issue.

Likewise, expression permitted by other laws may limit a private sector employer’s right to discipline and discharge its employees.  For example, a social media post opposing what the employee believes to be unlawful discrimination may have protection under Title VII of the Civil Rights Act of 1964.

Get professional help and be prepared

Employment law is complicated and when issues arise involving employee social media posts or other public communications, employers should consult with legal counsel before taking action.

Employers should have carefully drafted and lawyer-approved social media and communications policies.  Ideally, employees are trained on the policies and most problems are avoided by employee adherence to legally permissible employer standards.

At MARC, our team of experienced facilitators is ready to assist employers in their labor and employee relations challenges like these.  Click on our website’s Resources tab, reach out to MARC Vice President Gary Kleckner 216-973-7323, and see what we can do for you.