09/15/2025
"NJ doctor resigns after nurse said he 'cheered' Charlie Kirk's death.
Nurse who filed complaint keeps job after hospital investigation into September 10 incident."
Headlines like these have been prevalent since the shooting of Charlie Kirk on September 10. Condoning or celebrating the assassination of anyone whose views are different from their own is abhorrent. Employees should be aware that making such statements, or engaging in other "hate speech," is not necessarily considered free speech protected by the First Amendment.
To begin with, the First Amendment prohibits government regulation of speech and does not restrict private employers. The First Amendment protects from state regulation speech that may be deemed "hateful" and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. Volokh v. James, 656 F.Supp.3d (S.D.N.Y. 2023). Even regulations that seek to regulate speech "that insult[s], or provoke[s] violence, on the basis of race, color, creed, religion, or gender" have been found to run afoul of the First Amendment because they constitute content and viewpoint-based regulation of protected speech. Id. at 391-92. Nevertheless, the First Amendment does not provide absolute protection for all speech. Cantwell v. Connecticut, 310 U.S. 296, 304, 84 L. Ed. 1213, 60 S. Ct. 900 (1940). Three of its limitations are the limitations based on commercial speech, on fighting words, and on speech in the employment context. In the recent case of Noriega v. City of Jersey City, 2025 U.S. Dist. LEXIS 70850 (D.N.J. 2025), the New Jersey Supreme Court held that an employer was justified in discharging an employee who maintained a private Neo-Nazi for-profit website containing hate speech. The court held the First Amendment did not afford the plaintiff "a clear mandate of public policy" in favor of the protection of such speech.
Even public sector employees do not have free reign to engage in hateful speech that promotes harm. "Insofar as workplace speech is concerned, the Supreme Court has long held that public employees only receive First Amendment protection from retaliation in the workplace when they speak out on a matter of public concern and their interest in speaking outweighs the government's interest in promoting workplace efficiency and avoiding disruption." Noriega v. City of Jersey City, 2025 U.S. Dist. LEXIS 70850 (D.N.J. 2025). Gratuitous comments condoning someone's assassination may not be deemed to outweigh the government's interest in promoting workplace efficiency and avoiding disruption.
The First Amendment is, indeed, the foundation of our democracy. While the government itself may be restrained from regulating hate speech that may be offensive and repugnant, employers are not as shackled.