After the Charlie Kirk assassination last week, the world of employment law has quickly turned to the numbers of employees across the country who are being disciplined, suspended, or terminated for making negative comments about Charlie Kirk (and/or celebratory statements about his assassination) in the aftermath of his murder. We saw these types of terminations happen quite a bit back in 2020 after the George Floyd murder by the police and during the protests and riots that followed. Sometimes it was the protesting employees who were fired, and other times it was employees making mocking or racist comments about the protests and celebrating the death of Floyd. Very often an employee posted something on social media, which was reported back to the employer.
Weaponizing a person’s employment based on social media comments has become the new thing over the last decade. Once a mob targets a person the mob disagrees with, it’s only a matter of time until the employee’s company is contacted about reports of the social media comments. Generally, these comments are made on an employee’s personal social media accounts, not on company accounts. So the question becomes: Can a SC employee be fired for comments or posts on a personal social media accounts?
Public Employees Have Stronger Protections for Exercise of Free Speech than Private Employees
As I’ve written about before, the first question I ask is whether the employee works for a private company or for a public employer (federal, state, local government, state university). Why the difference? Well, because public employees work directly for the government, and the government is limited by the Constitution, including protections for free speech. [Read more: Can a South Carolina Employee Be Fired for Posts on Facebook?]
Private companies, like Walmart, Amazon, Delta, or any other company throughout your state, are not bound by the Constitution’s free speech protections (subject to state laws, which vary across the nation). This means that for the most part, South Carolina employees can be fired for anything that they say, subject to certain exceptions. Recall that private employees are employed at-will in South Carolina (along with 48 other states), meaning that SC employees can be fired for good reason, bad reason, or no reason at all BUT they cannot be fired for an illegal reason. [Read more: At-Will Employment and Its Exceptions in South Carolina]
Examples of illegal reasons include: retaliation for making a protected complaint about discrimination or harassment based on age, race, sex, national, origin, religion, or disability; discrimination based on those same categories; reporting safety concerns internally or to OSHA; or requesting medical leave for a serious health condition under the Family and Medical Leave Act (FMLA).
South Carolina’s Political Rights Statute Protects Private SC Employees From Retaliation As Well
Another exception that is most relevant to this discussion today is the South Carolina Political Rights Statute (SC Code § 16-17-560). This law applies to all employees, not just public employees. Under this statute, “[i]t is unlawful for a person to assault or intimidate a citizen, discharge a citizen from employment or occupation, or eject a citizen from a rented house, land, or other property because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State.”
Firing a SC citizen for expressing political opinions or exercising political rights protected by the Constitution violates this statute on its face. We don’t have a whole host of reported cases under this statute, but I imagine we may be seeing more after this week. South Carolina citizens have a private right to bring a lawsuit in state court to challenge a termination. [Read More: Political and Voting Rights for South Carolina Employees]
Elements of Protected Speech for Public Employees
For public employees, the Constitution provides additional protections than what private employees enjoy. These claims are often brought under 42 U.S.C. Section 1983. The protection, however, only covers statements made while the employee is speaking a private citizen. If part of your job requires you to have an opinion about the Charlie Kirk assassination, then you would be speaking as an employee, not a private citizen. But for most people with opinions or reactions to Charlie Kirk’s death, those opinions are being expressed on personal social media pages, and so they would meet the first element of protection.
Second, the statement must be made about a matter of public concern. Obviously, the assassination of a prominent political activist at a political event would qualify as a matter of public concern.
The final element is where the analysis gets more tricky. At this point, the courts have to balance the employee’s interest in speaking out about a matter of public concern against the government employer’s interest in maintaining an efficient workplace. This is where most of these terminations will rise and fall, because when does the comment interfere with an efficient workplace?
We have some real world examples to look at. Right now, the big push in South Carolina is against Clemson University. A few professors/employees posted on social media about the Kirk assassination that some argued made light of Kirk’s death. At first, Clemson released a statement that acknowledged that the speech was protected under the First Amendment while also saying that the statements made by the professor were deeply inappropriate. Then, under increased pressure, the university suspended at least one professor while an investigation could take place. The school stated that it would take “decisive and appropriate action in cases where speech is not protected under the U.S. Constitution and the First Amendment.”
Other governmental entities are not so measured. The Greenville County School District immediately terminated a high school teacher for making comments on social media that celebrated the assassination.
Yesterday, Clemson scheduled an emergency board meeting to address these issues. That same day, Clemson issued another announcement saying that it had fired one of the employees involved, but the university did not provide the names. We’ll see how this particular case plays out, because if a professor was terminated for social media posts (as appears likely), then I’m fairly confident a wrongful termination lawsuit will result. Clemson knows this, so it has to juggle the threats of state and federal Republicans who are threatening to defund the university if the employees are not fired.
Takeaways for South Carolina Employees Regarding the Charlie Kirk Assassination
Overall, it’s a disturbing and fraught time in our country. Empathy has dissipated from public discourse. Social media divides us. Everything is weaponized against the “other side.” We need to remember that protecting free speech is designed to protect speech we don’t agree with, because it’s only a matter of time before someone in power no longer agrees with what YOU believe and say.
From a legal perspective, you need to keep in mind that not all speech is protected against retaliation by your employer. You can say whatever you want, but consequences for certain comments will still arrive. That legal protection is less for private employees, but the law still protects exercise of your political rights. For public employees who are facing possible termination or retaliation for exercise of free speech rights, you should consult with a South Carolina employment lawyer to review your legal options. If you have been terminated for engaging in protected political action or political speech, feel free to contact our office today for a consultation.
