A legal scholar at Illinois State University says free speech rights may not protect employees who have posted disparaging comments online following the killing of conservative activist Charlie Kirk.
The head of ISU's legal studies program, Amelia Buragas, says public employees have some free speech protections, but those protections have been successfully challenged in court.
“I think the First Amendment is very misunderstood. Very often you will hear people say, ‘I have a right to my opinion.’ That may be true, but you don’t have a right not to be criticized for your opinion,” Buragas said in an interview on WGLT’s Sound Ideas.
Buragas noted Illinois law largely mirrors the U.S. Constitution. The Illinois Constitution includes the right to free speech: “All persons may speak, write and publish freely, being responsible for the abuse of that liberty. In trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense."
Buragas said basically defamatory language would not be protected.
Buragas cited a July ruling in the U.S. 7th Circuit Court of Appeals which upheld the firing of a public school counselor in Milwaukee who spoke against transgender rights at a rally. Milwaukee Public Schools fired the counselor for violating school policies against abusive and intimidating language and bullying.
The court determined that “the school district reasonably concluded that the speech was incompatible with her role as a school counselor and that took it outside the scope of protections provided by the First Amendment,” she said.
Buragas said while the rally speech was made outside the scope of her job “in a traditional free speech setting,” the court ruled that was outweighed by the school district’s interest in “an efficient, disruption-free workplace.”
Buragas said most private employers generally have wide latitude to fire workers, noting that 74% of private sector workers are classified at-will, meaning they can be fired for essentially no reason, as long as their firing is not illegal.
“Private employers can, in many instances, exercise that discretion with their at-will employees, including the things that an at-will employee may say or do outside of their workplace,” Buragas said.
For employers who have concerns about what their employees may be posting online and how it could potentially impact their business, Buragas said they should review their own policies regarding how employees can spend their time and what company resources they may or may not use [including email] for personal political activities or statements.
Free speech rights have come into focus as dozens of employees across the U.S. have faced firing, other disciplinary action or pressure to resign for making public comments seen as inflammatory regarding Kirk's death.
One incident involved a McLean County Nursing Home employee, whose name no longer appears in an online directory for the county-run facility as of Wednesday. Nursing home administrators have not said what disciplinary action it took against the employee over their online comments.
Immigrants' free speech
The calculation of when and where safe places for protest exist is different for undocumented immigrants during this time, according to an immigrant rights attorney.
James Brickson with the Immigration Project, an agency that provides immigrant legal services in McLean County and much of central and southern Illinois, said concerns about ICE raids and the Trump administration’s efforts to ramp up deportations may cause many in the immigrant community to avoid calling attention to themselves, even as they desire to publicly protest against the administration.
Brickson said immigration advocates they have met with have decided any public engagement should be done by those whose immigration status does not leave them in limbo.
“I certainly could be persecuted for speech… but I can’t be put into removal proceedings and deported because I said something bad,” Brickson said.
Brickson encourages protesters to “be smart” but worries many will be silenced out of fear.
“Inflammatory speech isn’t always the answer, but don’t cower in ways that you can speak truth to power,” Brickson said.
WGLT's Lauren Warnecke contributed to this story.
