Depending on the circumstances, a controversial media post may give your employer grounds to fire you without violating state or federal laws. But there are many variables in this situation that will dictate the outcome. If you’ve posted something that troubles or could trouble your employer, call our office immediately to discuss your concerns.

Charlie Kirk’s Death Causes Flurry of Online Reaction

Charlie Kirk was a young, controversial conservative who gained fame through his podcasts and online presence. He later co-founded Turning Point USA, a nonprofit organization that promotes conservative values. In September, Kirk was murdered by a young detractor while addressing a group at a Utah university.

Kirk became famous, or infamous, due to his controversial views.  He:

• Questioned the intellectual capabilities of women and black people
• Stated that some gun deaths were justified to have Second Amendment protections for firearm ownership
• Claimed that passing the 1964 Civil Rights Act was a mistake
• Portrayed immigrants and those who are transgender as existential threats to the country

Kirk’s death, much like his life, was the subject of a massive outpouring of social media posts, from both supporters and critics. The negative response to Kirk varied widely, from people stating they disagreed with what he said, but he shouldn’t have been killed, with others stating they were happy he was dead.

Some employers of some Kirk detractors fired them as a result. They were privately and publicly employed. Some were exposed by conservative groups seeking negative online comments about Kirk, to get people fired as a punishment.

New Jersey Firing Due to Negative Online Kirk Posting

At least one New Jersey resident lost a job due to a personal Facebook post about Kirk after his death, according to the Rider News. Kate Ecke, a Rider University adjunct professor of social work, was fired on September 17. A college-wide email by Rider President John Loyack didn’t name Ecke but stated, in relevant part:

Today, Rider University took swift and decisive action to terminate an adjunct faculty member whose behavior did not reflect our expectations for respectful and civil engagement. During our review of this matter, several individuals at Rider received a threat directed at our campus as a result of this individual’s actions.

In an interview with the newspaper, Ecke stated she was fired for expressing personal views on her own Facebook account. Some of those posts include:

• “I don’t care that Charlie Kirk got shot. Kids are being slaughtered in their classrooms and the same people crying outrage for him have nothing to say when it’s children in body bags. Spare me the hypocrisy. Charlie Kirk chose his platform—those kids never chose to die at school.”
• “[T]he whole message here is that no one deserves to be shot. At school. In a movie theatre. In a library. You’re missing the whole point of this.”
• “For everyone saying ‘Charlie Kirk didn’t deserve to die that way’: Welcome to the f—ing group chat. That’s what we have been saying all along. No one should be shot, ever. That’s … the whole point of this conversation.”

After Ecke’s dismissal, her Union, the American Association of University Professors, stated it would seek her reinstatement. They took the position that she shouldn’t have lost her job for expressing personal beliefs.

Ecke Was Not the Only One Getting Fired

National Public Radio (NPR) reports it found 33 people (many of them teachers, public-sector employees, firefighters, and military members) were fired, placed on leave, or subjected to investigations after social-media posts criticizing Kirk or expressing opinions about his death.

What Legal Protections Do I Have for Expressing Myself and Keeping My Job?

For most private-sector employees, employment is “at will”:  your employer may fire you for any reason that is not illegal, and you are free to quit your job.  A personal social media post could lead to job termination if the employer chooses to take that step, provided it doesn’t violate the law.

It may violate the law if management tolerates certain extreme social media posts by some employees, but not others. If an employer looks the other way when an employee makes racist remarks about Blacks, but fires someone stating something biased against Whites, they may have violated anti-discrimination or anti-equal protection laws.

Discipline and firings may also be illegal if they’re retaliation against someone because of their past protected actions. If someone posts something controversial who has filed for unemployment or workers’ compensation benefits, or has complained about prior discrimination or illegal employer actions, and is fired, but similar posts by those who haven’t engaged in those acts are tolerated, that could be unlawful retaliation.

As discussed below, the First Amendment to the U.S. Constitution and analogous protections under the New Jersey Constitution also may be a basis to attack unlawful or retaliatory workplace discipline.

You may have more legal protections against discipline or firing if you are employed under the terms of a private contract or your workplace is subject to a collectively bargained agreement.

As a Government Employee, Do I Have More Protections Under the US and New Jersey Constitutions?

Yes, but there are limits. If your public employer disciplines you for your speech, a court will consider whether:

• You spoke as a private citizen, not as part of your official duties,
• You spoke about a matter of public concern
• Your interest in speaking outweighs the government’s interest in maintaining workplace efficiency and discipline

If so, your speech will likely be interpreted as protected by the First Amendment of the US Constitution, and you shouldn’t be disciplined.

New Jersey’s state Constitution offers speech protections: “Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.”

The N.J. Supreme Court has stated: “New Jersey’s Constitution provides broader protection for free expression than the Federal Constitution and practically all others in the nation.” If you work for a government entity in New Jersey, you may benefit from the increased protection the state constitution offers.

Has Your Employer Treated You Illegally in Some Way?

If you believe your employer violated your rights due to a social media post, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call or write us today. You’ll be glad you did.