The First Amendment and Private Entities

Question: Will the First Amendment protect me from my private employer’s employee conduct regulations?

Answer: We often hear discussion of the First Amendment, especially during a Presidential election year. After all, the First Amendment covers not only freedom of speech, but also freedom of the press, freedom of religion, as well as freedom of peaceful assembly. But from whom does the First Amendment protect you? The answer, quite simply, is the government. The First Amendment prohibits the government from intruding upon these basic Constitutional rights.

That being said, our question this week focuses on a private employer, not the government. To the surprise of some, the First Amendment does not protect you from a private employer. Thus, if you state something obscene or in violation of your private employer’s code of conduct, you can be terminated notwithstanding the First Amendment. Of course, this article only focuses on the First Amendment, so there very well may be another means of recourse, including statutory law or administrative law in the labor field. However, with respect to the First Amendment, the amendment will protect you from the government, but not a private employer.

You may be asking yourself: how is there not total chaos with such an amendment protecting freedom of speech, religion and the press from the government? Well, as one may imagine, there are certain limits on the First Amendment. For example, one cannot go into a crowded theater and yell “fire” to induce a mass panic. Likewise, the government can regulate the exercising of your First Amendment rights by requiring a permit before holding a massive rally or parade. Additionally, there are laws against disturbing the peace, such as disorderly conduct or disorderly intoxication in Florida. In other words, though there is a First Amendment right to speech, the press and religion, there are some regulations with respect to how one can enjoy their right. Even the media must comply with certain Federal Communications Commission (FCC) regulations with respect to what images or language they broadcast over the airwaves, such as NBC, ABC, CBS, etc.

As always, if you have any concerns over whether you can legally do something, such as hold a massive rally, parade, or peaceful protest in the public domain, call my office before taking your desired action and let us help guide you for how to express yourself legally. We are only seven digits away at 215-0628. And, of course, use your ultimate form of expression tomorrow by voting on Election Day. There are many important races, not simply the Presidential race, so celebrate our democracy by exercising your freedom and voting this year.

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