Since we last posted about the First Amendment rights of employees in 2012, the law has remained relatively stable but social media has exploded. And for the last 14 years, courts have been trying to figure out how speech made online affects the legal analysis regarding the First Amendment rights of government employees.
For a primer on the First Amendment rights of government employees, go back and look at Attorney Summer Murshid’s post from 2012. However, here are few key points that frame when a government employee’s social media posts are protected speech:
The Supreme Court Recognizes Social Media as a Key Place for Discussion
In multiple cases, the Supreme Court of the United States has affirmed the importance of social media as one of the most important forums for cultural and political discussion. In a 2017 decision, SCOTUS wrote, “[w]hile in the past there may may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the vast democratic forums of the Internet in general, and social media in particular.” Packingham v. North Carolina, 582 U.S. 98 (2017) (cleaned up.)
Government Employees Have a Right to Post on Social Media But Those Rights Are Not Unlimited
Individuals do not lose their constitutional right to free speech when they start work as a government employee, and that extends to speech on social media. However, government employers can discipline and fire employees for speech that is protected by the First Amendment, if it causes enough disruption at the workplace. Courts must balance the interests of the employee in speaking and the employer’s interest in operating efficiently.
Every case is different and the legal analysis depends on all the facts of each situation, such as, the subject matter of the speech, the time and place the employee spoke, the tone and language of the speech, the intended audience, the impact on workplace operations, and how other staff felt about the speech and responded. But there can be no doubt at this point that private speech can go viral in a heartbeat, and that could justify an employee’s termination.
Internet Outrage Affects Employee Free Speech Protections
Speech on social media can spread like wildfire and trigger strong—even threatening—responses, directed at the employer. The internet’s outrage machine can lead to thousands of people, from across the world, calling and emailing the government employer about the speech. In fact, there are social media accounts that are designed to find and amplify speech they do not like and recruit people to fight against it, often by trying to get the speaker fired. Even public officials have done this. After the death of Charlie Kirk, Indiana’s Attorney General, Todd Rokita, publicized a post by a government employee criticizing Kirk, (“If you think Charlie Kirk was a wonderful person, we can’t be friends.”) and urged people to alert his office of anyone “celebrating or glorifying the tragedy,” according to the employee’s retaliation lawsuit. A massive response like that can seriously disrupt the operations of any workplace.
Hedgepeth v. Britton suggests that government employees should exercise caution on social media
A recent case suggests public employees should be cautious when posting, even on a private account. In Hedgepeth v. Britton, a public school fired a teacher for inflammatory posts on a private social media account about Black Lives Matter protests. She made the posts while she was on vacation in Florida and while school was out for summer break. The posts had nothing to do with her job as a teacher or the school. But 80% of her social media followers were former students and word spread quickly. Her school soon received complaints from current students, community members, and media outlets—both local and international—about the posts. The Seventh Circuit court of appeals said the school was justified for terminating the teacher, even though the teacher’s speech was protected under the First Amendment. The court said that her posts “carried a clear risk of amplification,” referring to how easily messages on social media can spread.
If you think you may have been unjustly retaliated against for your private speech as a government employee, contact us for a consultation.
1Jeremy W. Peters and Sabrina Tavernise, Fired for Criticizing Charlie Kirk, They’re Now Getting Big Payouts, New York Times, May 27, 2026, https://www.nytimes.com/2026/05/27/us/politics/ball-state-charlie-kirk-settlement.html; See also Swierc v. Mearns, et al, Complaint for Declaratory and Injunctive Relief, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.aclu-in.org/app/uploads/2025/12/1.pdf.
2152 F.4th 789 (7th Cir. 2025).