Updated: No First Amendment protection exists for private employees' speech. However, after the death of conservative political activist Charlie Kirk, some lawyers emphasize the importance of individually assessing workers' controversial public statements, rather than immediately terminating the employees.

Dawn Solowey, a management-side employment attorney, counsels employers to “take a deep breath” and analyze what is being reported to them about controversial social media posts and who is making the reports.

Solowey co-chairs Seyfarth’s cultural flash points task force, which the firm formed in 2023 in response to clients' employee disputes over COVID-19 vaccines; diversity, equity and inclusion programs; and other hot-button issues.

Scores of employees have lost their jobs as a result of social media posts and comments after Kirk's killing on Sept. 10. Among those terminated are teachers, airline workers, lawyers, first responders and many others. And Vice President JD Vance recently encouraged Americans to call the employer of anyone they’ve seen celebrating Kirk’s death.

Solowey notes, however, that it’s not as if there is only one solution for dealing with controversial employee speech.

“There’s a range of possibilities short of termination ... including some sort of verbal warning,” Solowey says. “We’ve seen clients have success with one-on-one coaching of employees.”

She notes that it’s important to consider whether the post is causing or likely to cause reputational harm to the employer with its clients or customers. And that’s not all. According to Solowey, the person’s job makes a big difference—whether the post came from an executive or a recruiter for the company versus a line worker.

Context matters a lot, says fellow management-side employment attorney Jonathan Segal, a Duane Morris partner.

“Celebrating death is materially different from commenting on a public figure’s positions,” Segal says.

And while private employers have broad latitude in disciplining employees for their speech, he noted that discretion is not unlimited. For instance, Segal explains that if someone commented on how Kirk’s views affected LGBTQ workers or Black employees and were harmful to them, disciplining them for “that could begin to get into the area of [National Labor Relations Board] protection, arguably, and even Title VII" of the Civil Rights Act.

If an employer terminates someone for speech that criticizes positions Kirk took on people in a protected class and links to the workplace, that could come with greater risks, Segal adds.

Nearly 30 states have laws protecting certain off-duty conduct from discipline, but Segal notes most of those laws may provide little help for employees. If the employer can show that a post about Kirk could harm its business, then it likely would fall outside of those protections in some states, including New York, he says.

One exception is Connecticut, which goes the furthest in protecting private employee speech, says Nina Pirrotti, a New Haven employment attorney who represents plaintiffs.

“As long as an employee is speaking as a private individual and not in an official capacity ... they are protected [in Connecticut] for speaking out on matters of public concern. No other state in the country provides that level of protection,” says Pirrotti, a partner at Garrison Law.

But Pirrotti also says that “it’s generally not unlawful for an employer to say, ‘I don’t like what you said about Kirk, you’re out.’”

Nonetheless, she has concern for the many employees who have lost their jobs.

“It’s keeping me up at night,” Pirrotti says.  She hopes other states will follow Connecticut and pass laws “to counter the scary, dangerous mindset of penalizing employees for speaking on matters of public concern.”

Ken Paulson, director of the Free Speech Center at Middle Tennessee State University, agrees that employees who don’t work for the government are vulnerable.

“There will inevitably be some chilling of free expression,” he says. “What’s happening [in the aftermath] is unprecedented to me in its finger-pointing aspects.”

Speaking at a recent webinar, Segal asked attendees what they thought of employers having a social media policy banning posts celebrating death. The responses surprised him.

“People opposed that,” Segal says. They thought defining ‘celebrate’ would be too vague and could deter conversation.” He notes that one attendee called the thought of such a policy “too Big Brothery.”

However, Solowey says that if employers don’t have a robust social media policy, they should.

“An employer may want to call out that certain kinds of social media posts, like glorifying violence, are antithetical to the company’s values,” she adds. “Employers should consider updating their policies and be clear what sorts of posts may result in discipline and even termination.”

Long before the Charlie Kirk killing and the ensuing flood of social media posts, Solowey notes she has seen cases where employees come with a screenshot of someone's post to human resources and say they no longer feel comfortable working with that person. Once that happens, she says, it’s hard for the employer to ignore it.

But she acknowledges that the Kirk story touches on so many different flash points at once.

“It’s a bit of a perfect storm in that sense,” Solowey says.

Updated Sept. 26 at 9:45 a.m. to clarify comments from Nina Pirrotti.