The woman who was infamously fired after giving the middle finger to President Trump has lost her wrongful termination case. A Virginia judge tossed Juli Briskman’s lawsuit, finding no First Amendment protection for private sector employees.

The ruling was not unexpected. In general, private employees are not shielded from repercussions for their words or actions, even if the conduct occurs off-duty and away from the workplace. First Amendment advocates worry about reprisal against employees who do not share their employers’ political beliefs or who openly oppose the administration in power.

Are employees ever on their own time?

Juli Briskman was riding her bike last October when the president’s motorcade drove by. She “flipped the bird” to express her personal feelings, a gesture captured by a White House pool photographer. The photo went viral but did not identify Briskman, who outed herself by re-posting the photo to Facebook and Twitter.

Soon after, she was fired by her employer, Akima LLC, ostensibly for violating the company’s social media policy. But Briskman claimed she was told by management they had to let her go because her anti-Trump gesture might anger the White House and cost them lucrative government contracts. She sued for wrongful termination, arguing that private speech – she was off-duty and away from work — is protected under state and federal free speech exclusions.

Judge Penney Azcarate dismissed the lawsuit, saying that those First Amendment exclusions do not apply in the private sector, where employment is at-will. She added that she would have ruled the same had Briskman given the finger to President Obama.

Azcarate let stand one part of the suit. Briskman said she was promised four weeks’ severance but was only paid two weeks’ worth. She was granted a month to amend her lawsuit accordingly.

Freedom of expression vs. business interests

Briskman’s lawyer alluded to broader ramifications. “Juli Briskman’s case is about democracy and the grave threat facing all Americans if keeping our jobs relies on our unconditional silence and support of the government in power.”

The defense lawyer said the underlying issue is much more simple. “The company found out about a rude and profane act and Akima decided it wasn’t interested in continuing with that particular person.”

Employees’ free speech has limits … and consequences

In the last few years, countless people have faced public backlash and been fired or suspended from their jobs (public and private sector) for speaking their mind on social media:

• In West Virginia in 2016, the director of a nonprofit was fired for racist comments on Facebook about Michelle Obama. She compared the then-First Lady to an ape. The mayor of the town, who replied that the offensive comment had “made my day,” also resigned as a result of the furor.
• Earlier that year, a mortgage company employee tweeted a similar offensive remark about the First Lady. Twitter users complained to her employer, who summarily fired her.
• A CBS executive was fired in 2017 for saying on Facebook that she had no sympathy for the victims of the Las Vegas shooting massacre because they were country music fans and thus presumably Republicans.
• In the wake of the Charlottesville alt-right rally, at least four people lost their jobs after they were outed on social media for embracing Nazi ideology.
• Comedian Roseanne Barr had her hit TV show cancelled by ABC after a series of Twitter rants. The final straw was a tweet that seemed to disparage both African-Americans and Muslims.
• A New York Times writer was fired for a tweet equating President Trump’s inauguration day with the attacks on Pearl Harbor and the World Trade Center.
• A California prosecutor has been suspended (with pay) after a profanity-laced social media tirade against Rep. Maxine Waters, Michelle Obama and Mexican immigrants.

The common thread is that all of these people were on their own time, on their private social media accounts, in a non-work capacity. The First Amendment guarantees against government censorship of free speech, but does not necessarily exempt free speech from employment consequences. In an at-will employment state (like Virginia), employees can be terminated for violating explicit social media policies or other written codes of conduct, for conduct that reflects poorly on the employer, or for no reason at all.

The question raised by Briskman and her proponents is how far employers can go in policing the private speech of their workers, and whether political views are grounds for dismissal if the employee’s beliefs do not align with the boss’s beliefs. In other words, do employees effectively forfeit their First Amendment rights by accepting a job?

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on July 10, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.