The Volokh Conspiracy
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Firing Public Employees Who Publicly Praise Violent Criminal Attacks
Some have been calling for the firing of people who publicly praised the murder of Charlie Kirk, or at least who argued that the murder was justified or defensible. I'm not wild about such calls; I think we generally need less cancel culture, not more, even as to people who say morally repugnant things. (Among other things, these calls for firing tend to spiral, to cover a wide range of other speech beyond the outrageous statements that first led to them.) But here let me focus not on the ethical or pragmatic question, but the legal one: If a government employer fires an employee for such speech, would that violate the employee's First Amendment rights?
[1.] Praising violence doesn't generally fall into any existing First Amendment exception, so that means it's protected against the government as sovereign—against criminal punishment, civil liability, and the like. The "incitement" exception is limited to speech that is intended to and likely to cause imminent illegal conduct. Praise of a past murder wouldn't qualify: Even if such praise may have a long-term tendency to influence people in the future to do bad things, the Court has rejected this "bad tendency" test for punishing speech.
Intentionally soliciting a criminal attack on a particular person may potentially be punishable as "solicitation" of crime, under U.S. v. Williams (2008) and U.S. v. Hansen (2023). But that certainly wouldn't apply to mere praise or justification of an attack that had already happened. (Just when it would apply to general advocacy of a future attack is a complex and unsettled question.) For more on these rules, see this post on the Graham Linehan controversy.
[2.] Of course, here the government is acting as employer, and in that capacity it has more latitude to discipline and fire employees than it does to imprison or fine them. Generally speaking, the government may discipline an employee based on the employee's speech if
- the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
- the speech is not on a matter of public concern, Connick v. Myers (1983), or
- the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Bd. of Ed. (1968).
There is no categorical exception even as to government employment for speech that praises violence; indeed, Rankin v. McPherson (1987) held that the First Amendment was violated by the firing of a law enforcement clerical employee for saying, after President Reagan was wounded, "if they go for him again, I hope they get him":
[The statement] plainly dealt with a matter of public concern. The statement was made in the course of a conversation addressing the policies of the President's administration. It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. While a statement that amounted to a threat to kill the President would not be protected by the First Amendment, the District Court concluded, and we agree, that McPherson's statement did not amount to a [punishable] threat … or, indeed, that could properly be criminalized at all.
The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. "[D]ebate on public issues should be uninhibited, robust, and wide-open, and … may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." "Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected."
[3.] But Rankin stressed that the speech actually didn't create much upset or disruption for the office, whether because of an internal reaction or an external one. To quote the concurrence by Justice Powell,
There is no dispute that McPherson's comment was made during a private conversation with a co-worker who happened also to be her boyfriend. She had no intention or expectation that it would be overheard or acted on by others…. The risk that a single, offhand comment directed to only one other worker will lower morale, disrupt the work force, or otherwise undermine the mission of the office borders on the fanciful.
The majority likewise reasoned,
Interference with work, personnel relationships, or the speaker's job performance can detract from the public employer's function; avoiding such interference can be a strong state interest…. [But w]hile McPherson's statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office…. Constable Rankin testified that the possibility of interference with the functions of the Constable's office had not been a consideration in his discharge of respondent and that he did not even inquire whether the remark had disrupted the work of the office.
Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson's speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present or heard McPherson's statement.
Nor is there any evidence that employees other than [her boyfriend] who worked in the room even heard the remark. Not only was McPherson's discharge unrelated to the functioning of the office, it was not based on any assessment by the Constable that the remark demonstrated a character trait that made respondent unfit to perform her work.
And indeed, if one looks at later lower court cases, they have routinely turned on whether the speech created enough public controversy. When the government is administering the criminal law or civil liability, such a "heckler's veto" is generally not allowed: The government generally can't shut down a speaker, for instance, because his listeners are getting offended or even threatening violence because they're offended. But in the employment context, the Pickering balance often allows government to fire employees because their speech sufficiently offends coworkers or members of the public. (The analysis may differ for public university professors, though it's not clear how much; see this post for more.)
This conclusion by lower courts applying Pickering might, I think, stem from the judgment that employees are hired to do a particular job cost-effectively for the government: If their speech so offends others (especially clients or coworkers) that keeping the employees on means more cost for the government than benefit, the government needn't continue to pay them for what has proved to be a bad bargain. Maybe that's mistaken. Maybe it's so important to protect public debate, including on highly controversial matters, that public employers should have to keep on even the most controversial employees (see this article by Prof. Randy Kozel, which so suggests in part). But that appears to be the rule.
We see this, for instance, with statements that are allegedly racist, sexist, antigay, antitrans, etc.: If they cause enough public hostility, or seem highly likely to do so, then courts will often allow employees to be fired based on them. But if they largely pass unnoticed except by management and perhaps just a few people who file complaints, then courts are much more likely to hold that the firings may violate the First Amendment (see, e.g., this post and this post, though there are many other such examples).
There are other factors that courts consider, to be sure: For instance, if the employer can show that a person's speech shows they are unsuited to the job, that makes it easier for the employer to prevail. But even there the magnitude of public reaction is relevant, because one common argument is that one trait required for certain employees is the ability and willingness to instill confidence and respect in coworkers and clients, rather than to produce outrage and hostility.
And while some have tried to distinguish, say, racist speech from other speech on the grounds that it shows the speaker is likely to unfairly treat clients or coworkers who belong the groups he condemns, one can say that about many kinds of speech: Speech praising the killing of people who publicly advocate for certain views may be said to show the speaker is likely to unfairly treat members of the groups. (Such unfair treatment may often be illegal, especially by public employees, but in any event will often be unethical and contrary to the employer's mission.) As a result, the magnitude of the public reaction, which is often measurable rather than speculative, ends up playing a major role.
This creates an unfortunate incentive: Like any heckler's-veto-like rule, it rewards would-be cancellers, if they only speak out often enough and with enough outrage. But rightly or wrongly, that is how these cases generally shape up.
