Media Law for the Real World: Can you get fired for something you posted online?
Free speech doesn't clock out. Why a Tennessee termination may not hold up in court.
A Tennessee state employee, Monica Meeks, was fired because she posted a comment on Facebook following the Charlie Kirk assassination.
After a friend posted about the killing, Monica commented “The way you tap dance for White Supremacist should be studied!” Apparently, her comment was too much for the fragile Tennessee Department of Commerce and Insurance to handle.
Monica began working at the department in 2016. The Foundation for Individual Rights and Expression states that, throughout her employment, she consistently received strong performance reviews.
In her termination letter, the department made clear that her firing was not a result of poor performance, but instead a result of her “inflammatory and insulting comment” on Facebook.
Good thing the First Amendment protects even the most offensive political speech. In fact, political speech sits at the very core of what the First Amendment was designed to protect.
The department may try to categorize her words as harassment or hate speech … but … hate speech is legal! Why? Because “hate” is subjective. You cannot make a law criminalizing speech that isn’t universally accepted as something too dangerous to be shared. And, even if something is considered too dangerous to be shared, once the government gains the power to decide which viewpoints are acceptable, everyone’s speech rights are at risk. “Dangerous” or not.
The irony here is that Tennessee officials routinely invoke the First Amendment when defending speech they agree with. After all, we are a state who frequently celebrates the upholding of constitutional rights and a limited government. We’re Originalists at heart. But the First Amendment is not a fair-weather principle. Its purpose is not to protect popular speech. Popular speech has never needed protection. The First Amendment exists precisely to protect speech that angers people, offends people, and challenges people in power.
The government employee claim
You might be thinking — she is a government employee, therefore she is a government actor. Correct. She is. But people don’t lose their First Amendment rights just because they’re a government employee. The courts use a three-part balancing test.
Was the employee speaking as a private citizen, or as an extension of the government?
Was the speech about a matter of public concern?
Does the state’s interest in ensuring efficient government operations outweigh the employee’s free speech rights?
When looking at Monica’s case, she clearly passes the first two criteria. She was speaking as a private citizen through her personal Facebook account. The Charlie Kirk assassination was a huge matter of public concern. It has been one of the most widely known and followed news stories. What’s left for the courts to determine is if the department’s interest in ensuring efficient operations without undue hardship outweighs Monica’s foundational freedoms.
What about employment at will?
When it comes to employment law — Tennessee is an employment-at-will state, meaning that employees can be fired for any reason, or no reason at all, at any time. Likewise, employees are also free to leave their jobs at any time for any reason or no reason at all.
However, this doesn’t simply mean that employers can do anything they want. There are still federal, state, and local laws surrounding employment that they have to adhere to. And, if they are a government actor, they still have to uphold the U.S. Constitution. Which, unfortunately for the sensitive ears at Tennessee’s Department of Commerce and Insurance, includes the First Amendment protection of free speech.
Employers can fire you for any reason, but not an illegal reason.