The new year promises to be characterized by at least as much political strife and upheaval as 2025, if not more. Globally, nationally, and even locally, we hear about human trauma and suffering, violent political uprisings, environmental degradation and injustice, and conflicts of all shapes and sizes.  Forget doom scrolling.  All one has to do is log onto Google or MSN to be assaulted by the latest crisis.

Inevitably, current events affect us all in profound ways, both personally and professionally, a trend that, unsurprisingly, has only been increasing in recent years.  A 2020 survey of 500 employees across the United States found that 78% of employees discuss politics at work, and 47% said such discussions negatively impacted their performance.  Some 36% said they actively avoid certain co-workers based on political ideology.  

Given that current events can undoubtedly inspire both verbal and non-verbal commentary, it’s a great time to hit refresh on the parameters of First Amendment and other political speech protections in the educational and employment context.  It’s no news to this audience that political speech is the highest form of speech protected by the First Amendment of the US Constitution. Of course, the First Amendment only protects speech regulated by the government; these protections do not extend to private workplaces or educational institutions - at least not in all situations.  There are, however, a multitude of state laws that limit regulation of political speech, even in the private sector.  Taken together, this patchwork of political speech rules can be confusing, and interpretations can vary depending on who is enforcing the rules.

Educational Institutions’ Regulation of Political Speech

Public Universities

First Amendment protections are robust for students in the public university environment.  The First Amendment protects the rights of students in public colleges and universities to express their opinions, even if others disagree with the views expressed (with some exceptions). It also protects many forms of expression, including spoken and written words, symbolic clothing, passing out flyers, and picketing under certain circumstances.  Campus public areas, such as streets, sidewalks, and parks, should be treated like “traditional public forums,” meaning restrictions cannot discriminate based on the message being expressed by protesters and must be sufficiently tied to a significant government interest.

However, public institutions still have the authority to reasonably regulate the time, place, and manner in which demonstrations and political speech can take place, as long as they leave ample other avenues for expression. Universities thus have greater authority to penalize students who stage protests in areas where access is restricted to certain people or for certain purposes.  Additionally, First Amendment protections do not extend to incitement (speech that intentionally calls for and is likely to cause immediate lawless action), threats of violence, harassment of others, and conduct that substantially disrupts the functioning of the campus.

Private Universities

Because private colleges and universities are not directly subject to the First Amendment, they can generally discipline students for their speech if it violates the school’s established rules, guidelines, or code of conduct.  However, federal law prohibits discrimination at any schools that receive federal funds based on protected characteristics, such as race, national origin, and sex.  As mentioned above, many states have laws or court decisions governing how private universities can regulate student expression and/or the process for disciplining students. More on this below.

Workplace Regulation of Political Speech

Governmental Employers

Individuals employed by the government at the federal, state, or local level do enjoy First Amendment protections, but these protections are not unlimited, and are subject to legal standards enunciated in Garcetti v. Ceballos.  Under that U.S. Supreme Court ruling, only speech made as a private citizen is generally protected.  If the speech meets this requirement, and is not part of an employee’s official duties, the next area of inquiry is whether the employee was speaking on a “matter of public concern,” i.e. an issue of social or political importance rather than a personal grievance. For example, writing a letter about school funding is a matter of public concern, while complaining about an office transfer is a personal issue.  Finally, if the speech can be characterized as voicing an opinion on a matter of public concern, then the government employer must show that the speech actually disrupted the workplace, undermined authority, or interfered with job performance. The level of disruption required can depend on the employee’s role.

Private Employers

In the private sector, the default rule is that employment is “at-will”, meaning that absent unlawful discrimination, an employee can be disciplined or even terminated for any reason or no reason at all.  That power often includes discipline for off-duty political expression, justified by vague claims of “disruption” to operations, coworker relations, or efficiency. But the at-will doctrine is not absolute. Forty-two states and the District of Columbia recognize a public policy exception: a termination is unlawful if it violates a clear and substantial public policy. Classic examples include firing an employee for filing a workers’ compensation claim, reporting safety violations, or refusing to commit an illegal act. While the circuit courts have sometimes extended free speech protections to political speech, employers have broad power to regulate or even prevent political speech (absent state or local protection laws).  Restrictions may include banning political posters, buttons, or any material employees display in their workspaces. Likewise, employers are not required to allow political clothing or garb in the workplace. An employer may even, arguably, require removal of bumper stickers from vehicles parked on the employer’s property.

Additional Protections for Political Speech

State Laws

Adding to the complex terrain of free speech protections, many states have enacted laws protecting political speech.  Examples include:

• California law forbids employers from making rules to control or direct the political activities or affiliations of their employees.

• New York prohibits discrimination based on an employee’s off-duty “political activities,” which it defines as running for public office or campaigning for a candidate.

• Colorado and North Dakota have broader statutes that protect any lawful off-duty conduct, which would include political expression.

• Washington D.C. has made political affiliation a protected class, similar to race or religion.

There are a number of websites that generally describe state laws protecting political speech and activities.  They can provide a good starting point for investigating what laws your state may have on the books to protect your political speech.

National Labor Relations Act

The National Labor Relations Act (NLRA) also protects certain activities, whether the company is unionized or not. Protected concerted activity includes discussions about wages and schedules, as well as working conditions and safety concerns.  Generalized complaints about, for example, an employer’s political stance or contributions, or environmental violations, would not be covered under the “protected concerted activity” umbrella, however, unless they implicated actual working conditions within the company.  Please note that NLRA interpretations are elastic, and activities that are deemed covered under the NRLA by one constituted NLRB may not be covered under a different political regime with different NLRB board members.

Anti-discrimination Laws

Penalizing political speech may implicate anti-discrimination laws, particularly Title VII, which can provide some protection for political speech and activities.  When political views are connected to protected characteristics like gender/sex, race, religion, or disability, they may be protected under Title VII.  Employer rules around political speech must be applied consistently to all employees, regardless of their political stance.

When Political Speech Is Not Protected

Regardless of whether an employee is in the public or private sector, certain types of political speech are never protected in the workplace. An employer can legally take action against an employee if their expression creates a hostile work environment for others. This can occur if the speech is abusive or discriminatory and is directed at a coworker’s protected characteristics, such as their gender, race or religion.

Speech that violates a company’s anti-harassment policies is also not protected. If an employee’s political commentary crosses the line into harassment of a colleague, the employer has a right, and often a legal obligation, to intervene. Similarly, speech that discloses confidential company information or trade secrets would not be protected.

An employer can also discipline an employee if their political speech significantly disrupts the business’s operations. This could include an employee who spends work hours on political campaigning or whose advocacy interferes with their ability to perform their job duties. In these instances, the employer’s action is based not on the content of the political view itself, but on the negative impact of the employee’s conduct on the workplace.

While the information above presents a starting point for determining whether political speech is allowed in a given situation, it is not to be considered legal advice.  Even if political speech is protected under existing law, it is no guarantee that the institution at issue, whether educational or professional, will honor those protections without a fight.  Always consider whether voicing your opinion, wearing a politically provocative tee-shirt, posting a social media meme, or plastering your office with political statements, is worth it.  Be informed about state laws that may protect your activity; understand what your student code of conduct or employee handbook policies are regarding political speech; don’t wear company insignia or link your activity to your employer; and assess whether your activity could be seen as harmful to the company.  Sometimes there are better ways to further your beliefs and have a real impact without putting your education or your career in jeopardy.

And sometimes there aren’t… the situation is simply too dire not to speak out.  Let your conscience be your guide, and good luck.

As a veteran of thirty years of legal practice, Melanie Houk welcomes the opportunity to look back on a career nearer to completion than commencement. A graduate of Loyola Law School, Melanie initially took a nontraditional direction, leaving a first-year position at Whitman Breed Abbott & Morgan to take a job as a consultant. Eventually returning to private practice, Melanie spent nearly a decade developing further public law expertise with redevelopment agencies and municipalities before gravitating to an in-house position at Lennar Corporation, where a markedly convoluted path led her to a promotion to Deputy General Counsel, a position she has held for close to fifteen years.