Can I be fired in California for telling a joke? Posting on Facebook? What law says
Can you be fired in California for telling a joke? What about posting something on X, Facebook or Instagram?
Concerns about what’s protected under the First Amendment surfaced in September when ABC announced it was indefinitely suspending Jimmy Kimmel’s late-night show over comments the comedian made following the death of far-right activist Charlie Kirk.
Meanwhile, late-night host Stephen Colbert announced in July that CBS was canceling “The Late Show” — just days after Colbert called out the network’s $16 million settlement with the Trump administration involving a “60 Minutes” interview.
What rights do employees have in California when it comes to freedom of speech?
The Sacramento Bee reached out to the American Civil Liberties Union to discover the answer. Here’s what we learned:
Which rights does the First Amendment protectt?
The First Amendment is part of the U.S. Constitution’s Bill of Rights, which “spells out Americans’ rights in relation to their government,” the National Archives say.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press,” the First Amendment says.
The First Amendment also protects people’s right to gather together “peaceably” and “petition the government for a redress of grievances.”
Can the First Amendment prevent you from being fired?
Can the First Amendment protect you for being fired for saying something your employer doesn’t like?
It depends, according to Chessie Thacher, senior staff attorney at the ACLU of Northern California.
“If an employer is a private company or entity or person, and not the government, then the First Amendment isn’t going to constrain how that employer reacts to your speech,” Thacher said.
In other words, your employer gets to decide whether you can keep your job. This pertains to what you say at work as well as in your private life.
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Can I lose my government job for speaking out?
The First Amendment potentially protects city, county, state and federal employees from being fired if they speak out.
If you were speaking in a professional capacity as a government employee, your employer can chose to terminate your job or take disciplinary action, Thacher said.
However, if the government employee was speaking in a personal capacity on an issue of public concern, they have more protections than private employees, the attorney said.
This includes comments at meetings of city councils and other government bodies that affect education, the economy and the everyday lives of residents.
California law does not provide First Amendment protections for private employees and follows federal guidelines.
What is the difference between free speech and hate speech?
To put it simply, free speech is what the First Amendment protects.
“The government can’t punish you for your speech just because it doesn’t like what you’re saying, either because of the content or your viewpoint,” Thacher told The Bee.
The protections provided by the First Amendment are meant to be broad, Thacher said but there are a few narrow categories of speech that aren’t protected under federal law.
These include incitement to violence, harassment and true threats, according to Thacher.
Is hate speech protected under federal law?
The United Nations defines hate speech as “offensive discourse targeting a group or an individual” that’s based on characteristics such as race, religion or gender, and may “threaten social peace.”
According to Thacher, hate speech is protected under federal law.
“Speech which is considered hateful or offensive is typically a matter of opinion,” Thacher explained.
“You need some breathing space so that people can debate concepts, challenge orthodoxies (and) push boundaries,” Thacher said. “Sometimes that kind of speech is really painful, shocking and alienating, but it’s still protected free speech, so it cannot be subject to the government’s censorship.”
Is hate speech protected under California law?
In California, hate speech often falls into the category of “hate incidents,” defined as actions or behaviors that are motivated by hate but are not crimes, according to the California Office of the Attorney General.
According to the state Attorney General’s Office, examples of hate incidents include:
- Name-calling
- Insults
- Displaying hate material on your own property
- Posting hate material that does not result in property damage
- Distribution of materials with hate messages in public places
California law protects people when a hate incident escalates to a hate crime.
California’s Ralph Act protects “people with special characteristics and their property from violence or intimidation by the threat of violence,” Beverly Hills law firm Hicks & Hicks Attorneys said on its website, with violations punishable by civil penalties of up to $25,000.
Can my boss fire me for something I post on X? Facebook?
According to Thacher, federal rules about free speech apply to posting on X, Facebook and other social media sites.
Private employers have the right to terminate employees based on what they post online, especially if what the employee said or wrote goes against company policy, Thacher said.
“The First Amendment does not restrain private employers for how it treats its employees based on their speech,” the ACLU attorney said.
Thacher said you should carefully read your employer’s company policy and other onboarding materials to better understand its expectations for employees.
Most government employees must abide by the Hatch Act.
The federal law “limits certain political activities of federal employees as well as some state, D.C. and local government employees, the U.S. Office of Special Counsel said on its website.
Although government employees have the right to post and share posts during their personal time, the federal agency said, the Hatch Act bars some from posting or sharing messages about a candidate or a partisan group.
Was Jimmy Kimmel’s suspension unconstitutional?
ABC temporarily took Kimmel’s late-night show off the air on Sept. 17 following criticism from conservatives and public pressure from the Trump administration, The Bee previously reported.
“Jimmy Kimmel Live!” returned to the airwaves on Sept. 23.
While ABC has the right to control its programming, Thacher said, its actions potentially went against the Constitution because of the federal government’s involvement.
“It is unconstitutional for the government to pressure private employers to punish their private employees because of their speech,” Thacher said. “That’s the government taking a position on speech that is okay or not okay. We cannot have that in America.”
