The assassination of Christian and political activist Charlie Kirk is a great loss to the Christian community. Not only was he reaching a new audience for his Saturday Sabbath-keeping religious beliefs, but he also regularly bore witness to his faith in Jesus to the least-religious generation of Americans. He died a Christian martyr.
Jesus taught in John 15:18–19 that the world hated Him—and would also hate those who are not ‘of the world.’ That teaching is reflected in Kirk’s killing, and again in the actions of the loons and louts who celebrated his death and were fired for their hateful speech.
Many of those who read Fulcrum7 are appalled by stories of employees who lost jobs for opposing DEI (diversity, equity, and inclusion) in the workplace. What are the rules for employees’ free speech? Are the DEI-related firings legally comparable to the terminations of those who celebrated Kirk’s death?
My past Fulcrum7 articles include a note that I am a law school professor and a civil-rights lawyer. What is not disclosed is that I am the co-author, along with Distinguished Professor Emeritus Thomas Haggard, of a law school textbook on employment discrimination published by a leading textbook publisher. And I teach employment discrimination in law school. What follows are the legal rules that surround the firing of employees for expressing their opinions.
Is Employee Speech Protected by the First Amendment to the U.S. Constitution?
The answer is generally, “No.” Citizens find protection in the First Amendment only against their government. Most people claim “free speech” rights against those who have no connection to the government. That’s a common misconception. For that reason, employees working in the private sector (meaning their employer is not part of federal, state, or local government) have no free speech rights against their employer.
Instead, most private sector employees are “at-will” employees. This means that they continue to be employed only as long as both the employer and the employee “will” to continue the employment relationship. That allows employers to fire employees for illogical and unreasonable reasons. It also allows employees, in whom an employer has invested a great deal of money, to decide they would prefer to lie on the beach rather than continue with their job. Neither the employer nor employee has any claim against the other in “at-will” employment.
Private sector employees can gain job security through a contract, or they can find employment protection through a statute. These statutes generally provide protection against discrimination based on union status, race, color, sex, religion, national origin, and sexual orientation, among other categories.
Employees of the government have First Amendment protection because they work for the government. However, protection for their First Amendment and other constitutional rights in the workplace is greatly “watered down” compared to the rights of ordinary citizens. Why is that? Imagine if every statement by a public employee had First Amendment protection. Should you be able to vent your full views about your supervisor? When you are on vacation, and your employer wants to find a project you are working on that is stored in your desk, should the employer have to first obtain a search warrant? Obviously, work would grind to a halt if the government, as employer, had to provide full constitutional rights to its employees.
Instead, when it comes to free speech, the Pickering/Connick rule (derived from two Supreme Court decisions) provides that unless an employee is discussing a matter of public concern, there is no First Amendment protection at all for that speech. However, if an employee is discussing a matter of public concern, then the interest of the public in hearing the speech is balanced against the public employer’s interest in efficiently running the business of government.
Applying these Rules
What follows from these rules is that if an employee is “at-will,” the employer can freely fire the employee for expressing any view about the death of Charlie Kirk.
Many employees who were fired for posting support for the assassination of Charlie Kirk were public school teachers. As employees of the government, they have watered down First Amendment protections for their speech. So, let’s apply the Pickering/Connick test. Is a statement applauding the assassination of Charlie Kirk a matter of public concern? The answer is, “Yes.” When President Ronald Reagan survived an attempted assassination, a member of law enforcement stated that next time she hoped a shooter would aim more carefully. This was held to be speech reflecting a matter of public concern.
How would the next step, the balancing of rights, turn out for teachers who publicly applauded the assassination? The school employer’s interest is in educating young people to be responsible members of society. How would that balance against the public interest in hearing pro-murder speech? My vote is that the employer’s interest in eliminating role models who support murder would easily outweigh any interest in the public hearing speech supporting assassinations.
As a result, the recent firings of private sector employees and public-school teachers are supported by law and create no new threat to our First Amendment rights.
Would these rules also support the firing of employees who oppose DEI? Recall that statutes protect employees against discrimination based on race and religion. These create rights even for “at-will” employees. The “equity” component of DEI promotes discrimination based on race, skin color, and sex. Opposing this type of discrimination is protected by the law. If at-will employees oppose DEI due to their religious beliefs, that is also protected. For these reasons, the DEI firings are much different than the current firings for hate speech against Charlie Kirk.
The Bible.
In my most recent Fulcrum7 article about illegal immigration, I focused on what the Bible says about migrants. What does the Bible say about the discharge or ostracism of individuals who promote hatred?
In Proverbs 22:24-25 we are counseled to avoid friendship with an angry or wrathful person because that person will influence us for evil. 1 Corinthians 15:33 teaches that “bad company ruins good morals.” That supports the idea that those “bad company” teachers supporting murder should not be allowed to ruin the morals of our children.
Titus 3:3 recalls that those who live apart from Jesus pass their “days in malice and envy, hated by others and hating one another.” In other words, they are “bad company.”
Proverbs 24:17–18 states: “Do not rejoice when your enemy falls….” This directly addresses celebrating a death.
Finally, 1 John 4:20 teaches that those who hate others cannot love God. And 1 John 3:15 tells us that one who hates his brother is a murderer.
There are many reasons for Christians to keep their children out of the public schools. One of those is that it is unlawful to hire or retain only Christian teachers. There are limits to how far public-school employees can go, and many are discovering those limits when they celebrate the death of Charlie Kirk.
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Bruce N. Cameron is the Reed Larson Professor of Labor Law at Regent University School of Law. He has been a part of the litigation team of the National Right to Work Legal Defense Foundation for almost fifty years. He is also the author of the popular GoBible® series of Bible studies which can be found at: www.GoBible.org.