A Guide to Understanding Free Speech in the Workplace
- November 14, 2025
- November 14, 2025
OVER
recovered for our employment law cases
- In general, the constitutional right to freedom of speech does not prevent most employers from making employment decisions based on an employee’s expression of views.
- Government employees have some speech protections under the First Amendment, but they can still be fired for conduct that interferes with their job performance or creates dysfunction in the workplace.
- Federal employment laws protect workers from repercussions for certain types of speech, including discussions of working conditions, complaints of discrimination or harassment, and whistleblowing.
- Some state and local laws offer further speech protections for workers. In New York, employees cannot be fired for political activity outside of work.
- Joseph & Norinsberg can help employees fight back if they’ve experienced retaliation for legally protected speech in the workplace.
Most Americans are familiar with the constitutional right to “free speech,” meaning the government cannot restrict the expression of ideas. However, employees might not realize that their right to express their views free of consequences may not extend to the workplace, especially when working for a private employer.
Some types of speech are still protected by federal law in all workplaces, and state or local laws may provide additional protections for certain types of speech. In this guide, the knowledgeable employment lawyers with Joseph & Norinsberg clarify what types of speech are and aren’t protected at work, and in which situations those protections apply.
Table of Contents
- What Does Free Speech Mean in the Workplace?
- How Does Free Speech Differ Between Public and Private Employers?
- When is Speech Protected Under Employment Laws?
- What Rights do Employers Have to Regulate Speech in the Workplace?
- What Are Common Misconceptions About Free Speech in the Workplace?
- How Can Employees Exercise Speech Responsibly in the Workplace?
- How Can State Laws Offer Additional Free Speech Protections?
What Does Free Speech Mean in the Workplace?
The First Amendment states that “Congress shall make no law… abridging the freedom of speech,” meaning that, constitutionally, free speech only applies to government action. Private employers often have policies that discourage or outright prohibit discussion of certain topics or views in the workplace.
Certain types of speech may create conflict in the workplace or make other workers feel uncomfortable, potentially leading to a hostile work environment.
How Does Free Speech Differ Between Public and Private Employers?
Since they are employed by the government, public workers have more protection under the First Amendment for their speech, especially for matters of public concern that don’t involve or significantly impact their job responsibilities.
In Pickering v. Board of Education, the U.S. Supreme Court found that the government can regulate employee speech only when its interests as an employer outweigh the employee’s right to participate in public debate as a private citizen. The court held that a school district was wrong to fire a high school teacher who had made public criticisms of the district’s administration, even when his writings included factual errors.
For private employees, company policy usually dictates what speech is and isn’t acceptable in the workplace—with some exceptions.
When is Speech Protected Under Employment Laws?
Federal employment laws such as the National Labor Relations Act and Title VII of the Civil Rights Act of 1964 provide legal protections for certain types of speech in the workplace, including the following:
- Speaking up about unfair treatment, including discrimination or harassment based on protected characteristics like race, sex, or religion
- Whistleblowing, or reporting potential fraud or other criminal activity at a government employer, federal contractor, or publicly traded company
- Discussing pay, scheduling, or other working conditions with co-workers
- Some additional private speech may be protected by state and local laws
However, these protections are limited and only apply in very specific circumstances. If you faced retaliation at work for speech you believe was legally protected, our employment lawyers can analyze your case and help you get justice. Contact us online or call 212-227-5700 today for a free consultation.
What Rights do Employers Have to Regulate Speech in the Workplace?
Employers are generally within their rights to restrict speech considered detrimental to the workplace. Types of speech employers may decide to limit include:
- Discussion of political opinions, particularly regarding divisive issues
- Bigoted comments toward those with protected characteristics that can lead to harassment or discrimination
- Inappropriate or unprofessional language, including sexual discussions and crass remarks about co-workers
While private employers have considerable leeway in regulating workplace speech, their policies cannot discriminate against workers based on characteristics protected by Title VII, including sex, race, or national origin.
What Are Common Misconceptions About Free Speech in the Workplace?
‘I can’t get fired for my political opinions, this is America, and I have freedom of speech!’
Free speech is not a “get out of jail free card” for professional consequences. If you make political statements that reflect badly on the company or create conflicts with your co-workers, your employer can reprimand or even terminate you based on company policy.
‘My social media posts are private. They won’t have any impact on my job.’
What you post on social media matters. Even if you don’t make your posts public, they may still make their way to your co-workers, potentially creating problems in the workplace.
‘My boss makes comments that I find offensive and uncomfortable, but he’s within his rights to have his own opinions.’
Your employer’s polices on workplace speech also apply to managers and supervisors. You’re not required to tolerate discriminatory, harassing, or combative statements from your boss when your company wouldn’t tolerate them from your peers.
How Can Employees Exercise Speech Responsibly in the Workplace?
A thoughtful approach and well-written policies can help strike a balance between allowing employees to express themselves and maintaining a harmonious workplace. Tips for communicating responsibly at work include:
- Read and take notes on your company’s policies. Knowing what is considered acceptable and unacceptable in your workplace can help you avoid or defuse potentially harmful interactions with co-workers.
- Be cautious about what you post on social media. The only way to be certain no one at work sees what you write on the internet is to not post it.
- Be considerate of your co-workers. Not everyone will react the same way to certain comments, jokes, or discussions. Remember that your perception of what’s normal, acceptable, and inoffensive may not always be the same as others.
- Avoid hot-button issues. Some topics may come up naturally at work, but conversations can escalate around certain controversies to the point of contention. If a co-worker keeps bringing up divisive issues even if you’ve asked them to stop, it might cross the line into harassment.
- Watch your messaging: Even if you don’t say anything divisive to your co-workers, your belongings might. Make sure your mugs, workspace, screensavers, bags, laptop, and clothing don’t feature any potentially inflammatory content.
How Can State Laws Offer Additional Free Speech Protections?
Local laws can limit the scope of what types of speech employers can police beyond what’s protected by the Constitution or federal law. It’s important to review state and local regulations on speech in the workplace or consult with an experienced employment lawyer if you have questions.
New York Labor Law § 201‑D prevents employers from discriminating against workers for political and recreational activity outside the scope of their jobs, including election campaigning and cannabis use. The law also gives employees the right to refuse meetings or communications concerning their employer’s religious or political views without punishment.
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