Should you be allowed to tweet or say anything you want, because free speech is covered by the First Amendment?
ABC sitcom star Roseanne Barr tweeted a racist comment about former White House adviser Valerie Jarrett on Tuesday and was swiftly fired.
But could everyday workers be fired for expressing their opinions at the office?
Here’s what experts say:
What am I allowed to post on Facebook and Twitter?
Employers may decide to take disciplinary action against their employees if they post something on Facebook /zigman2/quotes/205064656/composite FB +0.70% or Twitter that is inconsistent with their values on social media, said Paula Brantner, a senior adviser at Workplace Fairness, an employment law nonprofit. And that includes big stars like Roseanne.
It’s a particularly tricky issue when workers identify their workplaces on their social media profiles. That might imply that egregious tweets represent the views of the company when they post publicly, she said.
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ABC /zigman2/quotes/203410047/composite DIS -1.66% Entertainment, for instance, called Roseanne’s Twitter comment “abhorrent, repugnant and inconsistent with our values.”
“If you anger the wrong person, there is certainly the possibility of some kind of retaliatory action,” she said. She suggests checking privacy settings to make sure private posts stay private, and carefully considering who to be “friends” with on social media.
Managers could take issue with social media posts and potentially discipline an employee, she said. “Right now, a lot of people are speaking out about things they didn’t speak out about before. Generally in terms of our political debate, that’s a good thing,” Brantner said. “But if you’re doing it at work, there are risks.”
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Can I share my political opinions and keep my job?
If you’re a private-sector employee: No.
This issue also came up during protests in Charlottesville, Va., when a man who reportedly attended the white nationalist march lost his job at a hot dog chain in Berkeley, Calif.
The First Amendment guarantees freedom of religion, expression, assembly and the right to petition . The amendment prohibits the government from interfering in the free exercise of speech and religion.
That’s why it may give government employees additional protection, since any action against an employee may be considered government action, said Paula Brantner, a senior adviser at Workplace Fairness, an employment law nonprofit.
Private-sector employees are generally employed at the will of the employer, and their employers can fire them as they see fit, according to Mark Tushnet, a professor of law at Harvard Law School.
“A lot of people invoke the First Amendment in a private setting, thinking they have an absolute right to say what they want and speak what they want,” Brantner added. “They find out it’s not really true in a private workplace.”
Do laws regarding race and civil rights protect employees?
In addition to the First Amendment, employees are also legally protected from being fired based on discrimination, for their race, color, religion, sex or national origin, according to the Civil Rights Act of 1964.
A few states, including Connecticut, California and New York, and Washington, D.C., also have specific laws that protect employees from being disciplined for their political activities outside of work, according to Merrick Rossein, a professor of law and former acting dean of CUNY Law School in New York.
But even in those states, employers could argue that employees’ views or actions make them unable to do their job well, he said. “Everyone has to live according to their conscience,” Brantner said. “But be mindful your employer could take action against you.”
Does the First Amendment apply to NFL players and actors?
NFL players and actors are in the same legal position of any private-sector employee with respect to their First Amendment rights, Rossein said. Last week, the NFL approved a policy requiring players to stand on the field during the national anthem. However, those who do not wish to stand will be allowed stay in the locker room.
Owners of NFL teams may even have additional rights to fire players, according to the terms players sign in their contracts, giving the owners “great leeway,” Rossein said.
Owners may be able to argue that they should be able to fire players who do not conduct themselves on and off the field appropriately, he said. NFL players are part of a union, the NFL Players Association, which may give players additional protections. Representatives for the union have said they support the players’ rights to protest.
“Those opinions are protected speech and a freedom that has been paid for by the sacrifice of men and women throughout history,” said the association’s executive director DeMaurice Smith.
“No worker, nor any athlete — professional or not — should be forced to become less than human when it comes to protecting their basic health and safety,” he added.
Barr, also, is employed by ABC, a non-government entity. That’s why Channing Dungey, president of ABC Entertainment, could fire Barr without hesitation and without fear of legal recourse.
Many people seemed to agree with the decision. “It’s interesting that Twitter is finally getting what I’ve been saying about freedom of speech not giving you freedom from consequences,” one anonymous Twitter /zigman2/quotes/203180645/composite TWTR +2.06% user wrote on Tuesday. “Thanks, Roseanne.”
(This story was updated.)