Employers generally have discretion to discipline workers over social media

Editor’s note: “Behind the News” is the product of Sun staff assisted by the Sun’s AI lab, which includes a variety of tools such as Anthropic’s Claude, Perplexity AI, Google Gemini and ChatGPT.

Companies and public institutions across the United States, including those in Las Vegas such as Lotus Broadcasting, Las Vegas Realtors and Clark County School District, have taken disciplinary action or terminated employees for social media posts made in the aftermath of conservative activist Charlie Kirk’s assassination.

Nationwide, at least 33 people have been fired, put on leave, investigated or faced calls to resign due to social media posts related to Kirk’s death, including over 20 educators, pilots, firefighters, military members and sports reporters [1].

Why companies can act despite the First Amendment

The First Amendment protects individuals from government censorship or punishment for speech, but it does not apply to private employers [2]. Private companies like Lotus Broadcasting and Las Vegas Realtors have the legal right to discipline or terminate employees based on their social media posts if these violate company policies, damage the company’s reputation or create a hostile work environment [3].

Courts have consistently ruled that employees cannot successfully claim wrongful termination solely based on free speech protections against private employers [4].

For public employers such as CCSD, employees have some free speech rights as private citizens. However, courts balance the employee’s rights to speak on matters of public concern against the employer’s interest in maintaining efficient and disruption-free operations.

Speech by public employees that causes a “material and substantial disruption” to workplace operations or infringes on the rights of others can justify disciplinary action [6]. CCSD specifically cited that employee comments regarding Kirk’s death created material and substantial disruption, which can include interference with school activities or creating a hostile environment that affects the functioning of the district [7].

Employer responsibilities

Employers also have a duty to prevent harassment, bullying or intimidation in the workplace. If social media posts fall under these categories, employers are further legally justified in taking action [8]. Additionally, employers have reputational and operational interests in ensuring that employees’ public statements do not undermine workplace harmony, customer relations or violate codes of conduct, even when posts are made on personal social media accounts [9].

Legal viability of employer actions

It is generally legal for private employers to fire employees for social media posts, especially if those posts violate company policies or harm the business’s interests or public image [10].

For public employers, courts examine the context carefully, and disciplinary actions for public employees have held up when speech caused substantial workplace disruption or conflict with work duties [11].

Legal challenges are possible but difficult, particularly if the employer clearly documents disruption or violation of workplace policies[12]. While employment in most states is “at-will,” there are exceptions that allow wrongful termination claims, including discrimination based on protected categories, retaliation for whistleblowing or reporting illegal practices and violation of explicit public policy or contractual agreements [16]. If speech is protected under these exceptions, wrongful termination claims can proceed [17].

Recent court rulings on social media and employment

Recent Supreme Court decisions have clarified several important principles. In 2024, the court established that public officials using personal social media accounts for work-related communication act as government actors, meaning that blocking critics or deleting comments can violate First Amendment rights [20].

The court also confirmed that private platforms and employers have broad discretion to moderate content and take action against employees for social media speech that conflicts with workplace policies [21].

Balancing tests

Cases like Mahanoy Area School District v. B.L. (2021) protect certain off-campus speech under the First Amendment but distinguish between students and employees, highlighting that off-campus speech protections can be limited if speech affects the workplace environment [22]. Courts generally uphold employer decisions to discipline or terminate employees whose social media posts offend, harass or disrupt workplace harmony [23].

Legal and policy foundations

The National Labor Relations Act grants private-sector employees some protection to discuss working conditions, including in a political context, but this does not generally extend to broader political advocacy unrelated to employment[36].

State laws in places like California and New York provide additional protections for employees’ political activities, limiting the ability of employers to discipline based on political beliefs or lawful activities outside the workplace[37].

Historic cases on free speech and employment

• Pickering v. Board of Education (1968): A school teacher’s dismissal for writing a letter critical of the school board was held to violate his First Amendment rights, establishing that public employees can speak as private citizens on matters of public concern[34] .
• Garcetti v. Ceballos (2006): A deputy district attorney was transferred and denied promotion after writing a memo alleging police misconduct. The Supreme Court ruled that speech made as part of official job duties is not protected by the First Amendment, restricting protections for public employee speech related to their work[33][35].
• Connick v. Myers (1983): A government attorney was fired after distributing a questionnaire about office morale. The court determined her speech was on a matter of personal interest rather than public concern, and thus not protected[32].

Bobby Machado Las Vegas case

Bobby Machado, a radio producer at Fox Sports Las Vegas, was terminated after making offensive and profane social media posts on X (formerly Twitter) regarding Kirk’s assassination. Machado posted multiple comments that appeared to approve of Kirk’s death, which drew strong public backlash [24].

Lotus Communications issued a statement expressing deep dismay at Machado’s comments, describing the posts as “hateful and contemptible” and emphasizing that the remarks do not represent the beliefs or principles of the company.

Machado was immediately dismissed and is no longer associated with the organization [24]. The Vegas Golden Knights also released a statement condemning the comments and clarifying that he was never an employee of their team [26].

Clark County School District response:

CCSD issued a memo to employees following controversial public comments and social media posts regarding Kirk’s assassination. The memo reminded employees that while they have free speech rights, those rights do not protect speech that causes material and substantial disruption to school operations or infringes on the rights of others.

The district warned that employees who create disruptions through public statements or social media posts could face disciplinary action and stressed the importance of maintaining a professional work environment [27].

Illustrative cases: Teachers and OnlyFans

The employment consequences for social media and online conduct extend beyond political speech. Several teachers have faced job loss or discipline after their OnlyFans adult content was discovered.

Cases include Kirsty Buchan, a former physics teacher from Scotland who was removed from the teaching profession after students found and shared her OnlyFans content [28], and U.S. teachers like Jennifer Ruziscka and Brianna Coppage, who resigned or were put on leave after their OnlyFans activities were discovered [29].

These cases illustrate how employers, especially in education, enforce conduct standards beyond work hours when activities become publicly known and disrupt the educational environment [30]. Courts typically allow these terminations if misconduct or poor professional judgment is proven to affect the school climate or violate conduct policies [31].