Can You Be Fired for Political Commentary?

In today’s world, political discourse is rarely civil and can often lead to potentially tense and/or hostile disagreements. However, if an employee makes the choice to discuss hotly contested political topics in the office, could that employee be subject to discipline for his/her viewpoints, or does the First Amendment protect free speech and shield the employee from any potential discipline? The answer is complicated.

First, an employee should know that the freedom of speech protections provided by the First Amendment only apply to state actors. A private employer can terminate an employee for any non-discriminatory reason, including speech. Therefore, this article will focus on the power of state agencies and employers.

In Hayes v. Massachusetts Bay Transportation Authority and IXP Corporation, an MBTA employee was terminated for a controversial political statement that offended his coworkers at the MBTA’s 911 call center. He then brought suit against the MBTA and the IXP Corporation (an independent company that staffed the MBTA’s 911 call center) for violation of his First Amendment right to free speech.

The MBTA and the IPX Corporation filed motions for summary judgment, asserting there were no material facts in dispute. The Court denied the motion. In its analysis, the Court did not weigh whether the employee’s remark was objectively or subjectively offensive, since even bigoted or offensive comments enjoy First Amendment protections. The Court also did not make a determination as to whether the employee’s comment should have resulted in his termination. Instead, the Court cited a three-part test to analyze whether an adverse employment action against a public employee violated his First Amendment free speech rights. First, the Court indicated it must determine whether the employee spoke as a citizen on a matter of public concern. Second, the Court said it must balance the interests of the employee, as a citizen, in commenting on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of public services it performs through its employees. Third, the court stated the employee must show the protected expression was a substantial or motivating factor in the adverse employment decision.

In this case, the Court noted that only the second prong of the test was genuinely in dispute since the defendants did not challenge that Hayes was speaking as a citizen on a matter of public concern or that the statement was a motivating factor in his termination. The Court stated the controversy is whether Hayes’ free speech interests are outweighed by the MBTA’s efficiency interests and that this requires a hard look at the facts of the case, including the nature of the employment and the context in which the employee spoke. The Court concluded the factual disputes precluded summary judgment and the case will proceed to trial to determine whether the employee was terminated because his comment was offensive, or whether he was terminated because his employer needed to protect the workplace from disruption and enforce company policy. An employee cannot be terminated based on the former, only the latter.

In conclusion, employees of public offices are afforded First Amendment protections for the content of speech, but only to the extent that the speech does not substantially disrupt operations or directly violate company policy.


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