Data Points: Privacy & Data Security Blog

By Leslie Pedernales

The upcoming presidential election between two larger-than-life characters, each capable of stirring intense emotional reactions from both sides, is sure to produce some spirited debate around the water cooler this fall.  Many employees mistakenly assume that their expression of political speech (including nonverbal expression such as buttons or signs) is protected by the First Amendment of the U.S. Constitution.  However, it might surprise you to learn that employers generally have the right to regulate employee political speech – the level of that control depends on whether the employer is a public or private entity and whether the employee is located in one of a handful of states that has special protections for the free speech of employees of private entities.

The First Amendment – “Congress shall make no law … abridging the freedom of speech…” – only applies directly to public employees, not to employees in the private-sector.  As a result, the political speech of private employees is not federally constitutionally protected speech.  In addition, federal law prohibits public employers from discriminating against an employee based on any political affiliation, however, these protections are not unlimited.  Political speech by a public employee is constitutionally protected only if it involves “matters of public concern” and the interest of the employee as a citizen, in commenting on matters of public concern, must outweigh the employer's interest in promoting the efficiency of the public services it performs through its employees.

Some states (and local governments) have statutory or constitutional protections related to political speech and activities for both public and private employees.  Employers need to be aware of any applicable protections in the states/cities in which they do business before they act.   Outside of these states and localities, private sector employers have significant latitude in regulating employees’ political speech and may even prohibit it altogether.  In fact, such employers could even go so far as to terminate an employee based on his/her political expression at work, provided that the discharge does not violate any statutory or other employee protections.

Let’s be clear.  Just because an employer may have the option to impose an outright ban on political speech doesn’t mean it should.  Employers should be realistic; a complete ban on political expression is neither practical nor easily enforced and could negatively impact employee morale.