Listen to this article

Key Takeaways:

Charlie Kirk‘s killing intensifies disputes over employee social media posts.
Teachers and staff face investigations for comments on the killing.
Attorneys warn employers to apply consistent, clear workplace policies.
First Amendment protections differ for public and private employees.

BOSTON — The killing of conservative activist Charlie Kirk is proving to be a watershed moment in employment law, crystalizing for employers the need for thoughtful, consistent social media policies while providing a rude awakening to employees who find their jobs in jeopardy because of posts their bosses deem as crossing the line of civil discourse.

While the nation’s attention has been focused on the travails of late-night comedian Jimmy Kimmel, who recently returned as host of “Jimmy Kimmel Live!” following his suspension by ABC over his monologue in the wake of Kirk’s death, a number of employers and employees closer to home are facing the heat for ill-advised social media posts.

In Rhode Island, a Barrington High School teacher has been placed on administrative leave and now faces an investigation for his comments on the Kirk assassination. According to multiple news reports, the day after the Sept. 10 shooting at Utah Valley University, the teacher posted a TikTok video in which he called Kirk “a piece of garbage,” concluding with “bye Charlie.”

Meanwhile, The Boston Globe has reported that at least six teachers and staff in Massachusetts schools have been placed on leave pending investigations into their social media posts.

Cambridge employment attorney David E. Belfort said the pressure on employers has been ratcheted up by heated rhetoric from political leaders and others.

He pointed to Vice President J.D. Vance’s comments when he guest-hosted Kirk’s radio show in an episode that aired on Sept. 15. Vance said those who celebrated Kirk’s killing should be held to account.

“Call them out, and hell, call their employer,” Vance said.

“It’s very dangerous for public officials like the vice president to encourage employers to discipline employees based on speech,” Belfort said.

Boston labor and employment attorney Dawn R. Solowey said that she, too, is concerned with the “whistleblowing” phenomenon that has taken hold.

“Some employers are ready for this moment because they have been working on handling some of these cultural flashpoints proactively and so are better prepared to meet this particular moment,” Solowey said. “For others who maybe haven’t done that work yet, this situation is probably crystalizing for them the importance of doing it. Our advice is that it’s always better for employers to be proactive and thoughtful and prepared for these issues rather than being buffeted around and being in a reactive posture where something is blowing up on X.”

East Providence attorney Louise A. Herman said at-will employees in the private sector need to be especially careful with their off-duty social media posts since they are not protected under the First Amendment.

For employers, the key to managing risk is having clear and uniformly applied workplace policies, she said.

“The problem with political speech is that it can implicate discrimination laws — whether involving race, religion or gender identity. That’s where it can get dicey,” Herman said. “An employer certainly is within their right to prohibit discriminatory comments, threatening comments, and comments disclosing confidential company information. Those are examples of conduct an employer can comfortably prohibit.”

First Amendment principles

While the speech of those employed by private companies generally is not protected under the First Amendment, it’s a different matter for public employees. The bedrock principles on the First Amendment rights of public employees were established in a pair of U.S. Supreme Court decisions.

In its 1968 decision in Pickering v. Board of Education, the Supreme Court held that public employees do not surrender the right to speak out on matters of public concern simply by accepting public employment.

The court went on to hold that the permissible scope of that right in a given case involved the balancing of the employee’s interest in commenting on public matters against the state’s interest in promoting the efficiency of its workers in providing public services.

The court later built on the Pickering standard by adopting a two-part test for public employee speech in its 1983 decision in Connick v. Myers.

The Connick-Pickering test calls on courts to first decide whether the employee speech in question truly addressed a matter of public concern and, if so, whether the employee’s free speech interests outweighed the public employer’s interest in maintaining an efficient workplace free from disruptions.

Noting that the speech protections for employees of private employers are more “nuanced,” Solowey pointed to federal and state laws prohibiting discrimination against protected classes and labor laws protecting unionizing activity.

Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Apart from speech protections under nondiscrimination laws and the NLRA, Herman said employers need to tread carefully when addressing employee posts that might come under the protection of whistleblower laws.

“People might be posting about illegal conduct going on in the workplace,” she said.

Solowey said there are some state statutes that regulate when an employer can take action based on political speech for off-duty conduct.

“So those have to be weighed by the employer,” she said. “In an era where employers have employees from a lot of different states and who may work remotely, that’s one of the first questions we will ask: ‘Where does the employee work and live?’”

In terms of the laws of other states, Belfort said California, Colorado and New York are among those that have laws protecting the rights of employees to speak freely about political activity and social activism unrelated to work when they are off duty.

It is important for employers to be reasonably consistent in the way that they handle these [posts] and not react based on the political or cultural viewpoint expressed, but instead on whether or not there’s a violation of the employer’s policies.

— Dawn R. Solowey, Boston

Solowey pointed to G.L.c. 56, §33, as an example of a state law affecting an employee’s right to speech that employers need to be aware of. The statute generally prohibits employers from influencing an employee’s vote or political contributions by either offering inducements or threatening adverse employment actions.

Belfort cited the Massachusetts Civil Rights Act as a source for the protection of speech that is limited in the private employment context.

“The law does not yet allow for claims against private employers who interfere with an individual’s ability to exercise rights through usual discipline, including termination, as these are not the physical threats, intimidation or coercion protected under Massachusetts law,” Belfort said. “The employer’s First Amendment rights, in the at-will employment context, seem to supersede those of employees who post things that the entity believes are controversial, threatening or pose a risk of reputational harm to the employer.”

Heightened threat environment

Solowey co-chairs Seyfarth Shaw’s Cultural Flashpoints Task Force, which was launched in 2023.

“We formed the task force in response to what we were seeing in terms of the polarization in our society increasingly infiltrating the workplace,” she explained.

She noted that since the task force’s debut, the October 2023 attack on Israel and the bitter 2024 election have occurred. Now, there’s the Charlie Kirk assassination.

“It’s challenging to manage that kind of polarization in workplaces where you want to encourage people to bring their whole self to work. But when they do, people bring really strong opinions on really divisive issues, and those issues often intersect with protected classes,” she said.

Belfort agreed.

“The lines when it comes to private employers and free speech relate to allegations of potential discrimination and disparate treatment,” Belfort said. “The question is whether a post is connected to protected characteristics such as race, gender, disability or religion. The focus will be whether the content of the message touches on membership in protected classes and turns on how closely the post is tied to the workplace environment — whether it occurred on or off the job, is there a company policy, what is the policy, and is there uniform enforcement of the policy.”

Solowey said Kirk’s death has added another element that makes it particularly challenging for employers striving to keep discord out of the workplace.

“One thing that we’ve really seen is there have been so many posts that have veered into celebrating or glorifying violence,” Solowey said. “Even if that isn’t specifically prohibited by a social media policy, many employers view it as antithetical to their core values and something that reflects very negatively on their reputation. So that’s been one of the lines in the sand that many employers have been drawing.”

Kirk was very outspoken on “many of the flashpoints of the day,” Solowey noted.

“He had strong and divisive positions on issues that touched gender, race, religion, sexual orientation, gender identity, gun rights — almost any flashpoint you can think of, he was out there with a strong point of view. And, so, in some ways it’s inevitable that there are going to be social media posts that go at least up to the line, if not over it,” Solowey said.

Managing risk

Solowey said clients are learning about problematic employee posts concerning the death of Kirk in a variety of ways.

“Sometimes it’s a colleague who has taken a particular screenshot of a particular post,” she said. “Sometimes it’s a customer or a client, some other stakeholder, or simply a member of the public who has identified the poster as someone who works for the company and is writing to alert the company to the post.”

In handling such issues effectively, Solowey said it is critical for employers to be “anchored in their workplace policies.”

“Most employers have no interest in policing every political statement that their employees make,” she said. “They understand that they have diverse work forces, that it’s a polarized country, and that people are inevitably going to have very strong positions on all of these divisive political and cultural issues.”

The truly problematic posts typically will be those that the cross the line in terms of negative stereotyping of an entire protected class,” she said.

The determination of whether an employee’s social media post has “crossed the line” is essentially going to be an individualized inquiry, Solowey said.

“When I get these calls, the first thing I want to see is what do your policies say and exactly what does the post say. What words were used, what images are used,” she said. “There’s really no way of getting around doing an individualized assessment of the post. And not just exactly what it says, but also whether it was posted on a public forum or a more private setting. What is the impact on the workplace? What is the job role of the employer? It’s going to be different if it’s an executive speaking, who may be seen as the spokesperson for the company, versus the line worker.”

Apart from company policies, Herman said that terms in individual employee contracts, such as those for executives, may weigh on an employer’s ability to take action against an employee.

“If the contract includes a prohibition on [certain categories of] social media postings, a breach of that prohibition would be grounds for termination,” Herman said. “On the other hand, if the listed grounds for termination do not include such conduct, the termination would be a breach by the employer.”

In deciding whether a particular post merits disciplinary action, Solowey said consistency is the key.

“It is important for employers to be reasonably consistent in the way that they handle these and not react based on the political or cultural viewpoint expressed, but instead react based on whether or not there’s a violation of the employer’s policies,” she said. “If they do that, then the employer is insulating themselves from [a claim of disparate treatment] because they will be able to show that they had a consistent ‘through-line.’ ”

Pat Murphy reports for Massachusetts Lawyers Weekly.