NEW YORK — In the days after the fatal shooting of conservative activist Charlie Kirk, a number of workers were dismissed for public comments about the killing, a wave of personnel actions that legal experts and human resources professionals say underscores the limited legal protections for most employees who speak out of work.
Among those reported to have lost their jobs was MSNBC political analyst Matthew Dowd. The moves came as employers reacted to social media posts and other public remarks that some viewed as celebrating or endorsing the killing, prompting calls to take action and, in some cases, prompting organizations to remove or discipline staff.
In the U.S., legal protections for employees who are punished for speech vary widely by state and by whether the employer is a private company or a government entity. For most private-sector workers, the default is "at-will" employment, which allows employers broad discretion to hire and fire employees for speech and other conduct. "Most people think they have a right to free speech…but that doesn’t necessarily apply in the workplace," said Vanessa Matsis-McCready, associate general counsel and vice president of HR Services for Engage PEO. "Most employees in the private sector do not have any protections for that type of speech at work."
Employment and labor attorney Andrew Kragie said the First Amendment does not constrain private employers. "The First Amendment does not apply in private workplaces to protect employees’ speech," he said. "It actually does protect employers’ right to make decisions about employees, based on employees’ speech." Kragie noted that some states have carve-outs that forbid employers from punishing workers for political views, but he said the enforcement and interpretation of those laws can be uneven.
Several states also have statutes protecting "legal off-duty conduct," according to Steven T. Collis, a law professor at the University of Texas at Austin and faculty director of the school’s Bech-Loughlin First Amendment Center. But Collis said such protections often include exceptions for conduct that is disruptive to a business or harms an employer’s reputation. "In this scenario, if somebody feels like one of their employees has done something that suggests they are glorifying or celebrating a murder, an employer might still be able to fire them even with one of those laws on the books," he said.
The calculus is different for public employees, who can sometimes invoke First Amendment protections when speaking as private citizens on matters of public concern. Collis said Supreme Court precedent gives public-sector workers a distinct set of legal considerations, but it does not immunize all speech. Government employers have taken steps to restrict or discipline employees in the aftermath of the killing, even where legal protections might apply.
At the Pentagon, leaders announced a "zero tolerance" policy for posts or comments by military personnel that make light of or celebrate the killing. Pentagon spokesman Sean Parnell said on social media that "it is unacceptable for military personnel and Department of War civilians to celebrate or mock the assassination of a fellow American," a response that followed hours of messages from conservative military influencers and others to Parnell and Defense Secretary Pete Hegseth pointing to posts they deemed problematic.
Human resources experts said the ubiquity of social media has made it easier than ever to document employees' off-duty statements and to mobilize complaints. "People don’t realize when they’re on social media, it is the town square," said Amy Dufrane, CEO of the Human Resource Certification Institute. "They’re not having a private conversation with the neighbor over the fence. They’re really broadcasting their views."
HR professionals and legal advisers said many employers are revisiting policies governing political speech and public conduct by employees. Some companies are providing training about appropriate conduct both inside and outside the workplace, and others have clarified expectations for employee behavior on internal communications platforms such as Slack and Teams. Matsis-McCready said that workplace chat systems can make informal remarks feel more public and prompt faster managerial response: "The gamification of the way we communicate in the workplace...they’re very similar to how you might interact on Instagram or other social media, so I do think that makes it feel a little less formal and somebody might be more inclined to take a step and say, 'Oh, I can’t believe this happened.'"
Employers also worry that employees can be perceived as brand ambassadors whose statements may damage a company's reputation. Matsis-McCready said viral posts have led to a surge in calls and complaints to employers, increasing pressure on organizations to act quickly. She added that the violent nature of the killing has heightened concerns about threats to workplace safety and prompted some employers to be particularly vigilant.
Observers said aggressive reactions by employers after high-profile incidents are not new and that monitoring of online activity has been routine for years. "Employers are already and have been for a very long time vetting employees based on what they’re posting on social media," Collis said. Legal and human resources specialists expect that scrutiny to continue as political polarization and social media use remain high.
Associated Press staff writer Konstantin Toropin in Washington contributed to this report.