You’re Fired!

In the wake of the Duck Dynasty dust-up, the Chik-Fil-A controversy and other events triggering “right to free speech” debates, we get this report from Huffington Post:

In the new survey, 45 percent of Americans said the First Amendment does not allow people to be fired from a job for expressing their views, while only 36 percent said such firings are allowed under the Constitution. Twenty percent said they weren’t sure.

Answers to other questions in the poll were equally depressing. The article’s provocative title was “Do You Know More About the First Amendment than Sarah Palin?”–and when the answer to that is “no,” you’ve really hit bottom.

The dismal poll results remind me of the young man who called the ACLU, back when I was Executive Director, and demanded that we sue White Castle for denying him his First Amendment rights. They’d refused to hire him, apparently because he was so heavily tattooed they found it unappetizing. I still remember him insisting “I have a right to free expression!” As I tried to explain, yes, and so does White Castle.

If the City of Indianapolis–or any unit of government–passes a law forbidding you from tattooing your body, then you’ve got yourself a genuine, real-life, rootin’ tootin’ constitutional challenge. When White Castle disapproves, you don’t.

If the government told A & E that it couldn’t suspend Mr. Homophobic Duck Guy, it would be violating A & E’s rights. If a local government refused to zone a Chik-fil-A because its owner is a homophobic jerk, it would violate Chik-fil-A’s rights. (Annoying as it may seem, jerks have constitutional rights too.)

Listen up, Americans! The Bill of Rights restricts what government can do. And one of the things government can’t do is protect you from being fired for shooting off your mouth.

Now was that so hard?


  1. This isn’t a new phenomenon. And the associated misunderstanding, articulated by none other than Sarah Palin (well, “articulated May be both too big a word and somewhat inappropriate as a descriptor for anything she says), is the notion that the First Amendment also protects people from criticism for saying bigoted, hurtful, stupid, or simply incorrect things.

    I’ve written on this misunderstanding if the protections offered by the First Amendment in the context of boycotts against businesses (, Rush Limbaugh’s attacks on Sandra Fluke (, and ESPN’s firing of Hank Williams (

  2. Come to think of it, this warped misunderstanding that the First Amendment protects people from others exercising their own First Amendment rights has much in common with the “religious freedom” argument that respecting or accommodating one group may infringe on the religious freedom of another.

  3. At my old law firm, I had three calls from people wanting to sue for tattoo discrimination companies that wouldn’t hire them because of visible tattoos. I had to tell them the companies had every right to do that. People need to give more thought when they are getting those tattoos.

  4. Funny thing is, laws have been passed that end up protecting certain speech in the work place. For example, while it may be legal to fire someone for expressing the view that homosexuals are immoral, it would be illegal to fire someone for supporting gay rights. This shows that some speech has less consequences than other, some speech is free’er than other.

  5. Rob– other than civil rights laws/decisions addressing workplace harrassment (creation of a hostile workplace), I am unaware of any laws that distinguish between speech supporting OR opposing gay rights, or women’s rights, etc. I am also unaware of any law that would forbid a private-sector employer from firing an employee for simply supporting gay rights. (In jurisdictions where civil rights laws prohibiting discrimination include discrimination based upon sexual orientation–Indiana’s does not–a private employer may not fire someone simply for being gay.)

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