Kirk Commentary Firings to Test Public Worker Speech Protections

Government employers terminating or threatening workers for remarks considered critical of conservative activist Charlie Kirk’s death are heading toward a clash with longstanding US Supreme Court restrictions on disciplining employees over personal speech on public issues.

Kirk’s Sept. 10 killing led to a wave of disciplinary actions across the country at companies like American Airlines, Nasdaq Inc., and Perkins Coie, as well as restaurants and educational institutions, over social media comments criticizing the Turning Point USA founder or implying approval of his death. Conservative activists and Republicans in Congress have been publicizing the names of those who posted remarks deemed offensive or celebratory.

At least two lawsuits have been filed, including one by a terminated Iowa public school teacher who posted “1 Nazi down” on his personal Facebook account. More cases are expected. And at least one public institution has already declared swift action.

The social media fallout raises questions about public workers’ free speech rights as private citizens during divisive events, because, unlike in the private sector, their employers can’t interfere unless they substantially disrupt an interest to maintain workforce efficiency.

While the outcome of each case may depend on the specific comments at issue, government entities will likely face legal hurdles in justifying their disciplinary actions under the Supreme Court’s 1968 Pickering v. Board of Education decision, which affirmed that public employees retain their First Amendment rights to comment on public issues or debate off-the-clock, attorneys and legal scholars said.

“Much of the rhetoric from government officials has really ignored the nuance of First Amendment law and the strong protections it provides to public employees,” said Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression, a nonpartisan free speech legal advocacy group.

FIRE has been reviewing complaints from various public workers who were recently disciplined to determine whether their claims merit court action, he said.

The government has a “limited” defense for adverse actions regarding personal off-the-clock speech, Terr said. To succeed, it must show that the speech “seriously disrupts the employer’s ability to provide public services or the employee’s job performance such that it outweighs the employee’s strong interest in speaking freely.”

Making threats or inciting violence through speech, however, isn’t protected and can lead to punishment. And the high court’s 2006 Garcetti v. Ceballos decision clarified that the Constitution doesn’t insulate public employees’ speech made as part of their official job duties.

Balancing Test

Pickering ensures that the government can provide public services effectively without giving it sweeping power to punish employees for opinions, “no matter how intemperate the commentary may be and how many people may disagree,” said Lucinda M. Finley, an employment and constitutional law professor at the University at Buffalo Law School.

It requires that a plaintiff must have spoken as a private citizen rather than a public employee, and that the speech concerns a matter of public interest and is at least a motivating factor behind the adverse action.

If the worker meets those three requirements, the burden shifts to the employer to show that public service efficiency outweighs the plaintiff’s interest in commenting as a private citizen.

A worker’s colleagues or members of the public disliking their opinion isn’t enough to demonstrate substantial disruption to avoid liability, said Jessica Smith, a partner at Holland & Hart LLP.

An adverse action based on an alleged violation of a social media policy prohibiting employees from commenting on public concerns outside of work hours is also unconstitutional, she said. “The restriction must be narrowly tailored.”

Virality Factor

As cultural and political polarization increasingly spill into the workplace through off-duty conduct, the intense public backlash to viral posts and their impact on public perception of government operations have become key factors in assessing free speech rights.

The Sixth Circuit’s 2020 Bennett v. Metropolitan Government of Nashville decision, which upheld the termination of a White public employee over her racially derogatory social media post, adopted the Fourth and Second circuits’ reasoning that widely shared commentary can magnify public perception issues and justify discipline.

“These situations push courts to confront how Pickering balancing relates to the core principle that the First Amendment cannot allow for a heckler’s veto,” said Charlotte Garden, an employment and constitutional law professor at the University of Minnesota.

A heckler’s veto occurs when a speaker is silenced by disruptive or hostile reactions rather than the speech content.

Some courts address this tension by examining how the controversy affects the public employer’s daily operations or local relationship, while preventing reliance on a high volume of angry calls or emails from unrelated individuals, she said.

While case law remains mixed, university faculty have successfully used the principle of academic freedom to defeat their adverse employment actions stemming from their unpopular speech.

Federal Avenues

The Trump administration’s plan to discipline civil servants over Kirk commentary could lead to long waits for appeals.

That’s because the Merit Systems Protection Board—an independent, quasi-judicial agency charged with handling federal workers’ appeals over adverse employment actions—lacks a quorum to fully function after Trump fired Democratic Member Cathy Harris in February, and the other Democratic member retired days later.

The administration’s widespread layoffs aimed at shrinking the federal workforce, while also restricting avenues for federal employees to contest personnel decisions, have already limited workers’ legal options.

The MSPB currently has a backlog of over 3,700 cases. It received over 11,000 new cases since Trump took office, more than double the total it received in fiscal year 2024, according to agency records.

Federal workers challenging disciplinary actions will likely take cases to federal court “because of the erosion by the Trump administration of civil service protections and the Merit Systems Protection Board,” said Finley.

“And I do not think that the federal courts are going to try to water down or get rid of the Pickering test,” she said. It’s “on solid legal ground.”