Freedom of speech, as guaranteed by the First Amendment, does not apply to private companies. The Constitution restricts only government actors — Congress, state legislatures, city councils, public schools, police departments, federal agencies — from punishing or censoring speech. A private employer, a social media platform, a store, or a landlord can generally set its own rules about what people say on its property, its payroll, or its servers. Other federal and state laws fill some of the gap, protecting specific kinds of speech in specific settings, and those laws often matter more day to day than the constitutional question does.
Why the First Amendment Stops at the Government
The First Amendment opens with “Congress shall make no law” restricting speech, and courts have consistently read that language as reaching only government power.1Legal Information Institute. U.S. Constitution Annotated – State Action Doctrine and Free Speech This is the state action doctrine. A First Amendment claim can be brought only against a government body. A purely private party cannot violate the First Amendment, no matter how aggressively it polices what people say.2Legal Information Institute. State Action Requirement
The instinct to invoke “free speech” when a platform removes a post or an employer fires someone over a public statement is understandable, but the constitutional guarantee simply doesn’t reach those situations. Private companies have their own rights to run their businesses, set workplace rules, and decide what appears on their platforms.
There are narrow exceptions. The Supreme Court has recognized that a private entity can be treated as a government actor when it performs a function “traditionally exclusively reserved to the State,” when the government compels a specific action, or when the government acts jointly with it.1Legal Information Institute. U.S. Constitution Annotated – State Action Doctrine and Free Speech The classic example is a company town that owns the streets and sidewalks and functions as a municipality. Shopping malls, which look like town squares in practice, do not qualify: “Suburban malls may be the new town squares in the view of sociologists, but they are private property in the eye of the law.”3Congress.gov. Constitution Annotated – Quasi-Public Places In Manhattan Community Access Corp. v. Halleck (2019), the Court stressed that “very few” private functions meet the traditional-and-exclusive test.4Legal Information Institute. Manhattan Community Access Corp. v. Halleck For almost every private company you deal with, the exception is not going to apply.
Social Media Platforms and Your Account
Social media companies are private entities. They are not bound by the First Amendment and can enforce their own content policies, removing posts, suspending accounts, or banning users. Size doesn’t change the analysis, and neither does the platform’s role in public conversation.
In Moody v. NetChoice (2024), the Supreme Court went a step further and recognized that platforms exercise editorial discretion when they curate feeds, comparing those choices to the editorial judgments of newspaper editors. Platforms “include and exclude, organize and prioritize — and in making millions of those decisions each day, produce their own distinctive compilations of expression.”5Supreme Court of the United States. Moody v. NetChoice, LLC Platforms may have their own First Amendment right to decide what appears on their sites, not just a lack of any duty to host all speech.
A harder question is what happens when government officials pressure platforms behind the scenes to take content down, sometimes called “jawboning.” In Murthy v. Missouri (2024), the Supreme Court dismissed a challenge to federal officials’ contacts with social media companies on standing grounds and explicitly declined to decide when such pressure becomes unconstitutional coercion.6Supreme Court of the United States. Murthy v. Missouri That question remains open.
What Your Employer Can and Cannot Punish You For
Most private-sector workers are employed at will, and an employer can generally fire someone for something they said. Several federal statutes carve out important exceptions.
Talking With Coworkers About Work
The National Labor Relations Act protects most private-sector employees’ right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”7Office of the Law Revision Counsel. 29 U.S. Code 157 – Right of Employees as to Organization, Collective Bargaining Your employer cannot punish you for discussing pay with coworkers, complaining together about unsafe conditions, or organizing a union.
The protection extends beyond formal union activity. Two coworkers texting about unfair scheduling, or a group publicly criticizing management’s safety record, can qualify. You can lose the protection by making knowingly false statements about your employer or by saying something egregiously offensive that goes beyond any labor dispute.8National Labor Relations Board. Concerted Activity
Reporting Illegal Conduct
Federal law shields employees who report illegal conduct from retaliation, with the specific protection depending on what’s being reported.
- Workplace safety: The Occupational Safety and Health Act prohibits employers from firing or punishing employees who file safety complaints, participate in OSHA inspections, or report hazardous conditions. A complaint of retaliation must be filed with the Secretary of Labor within 30 days.9Office of the Law Revision Counsel. 29 USC 660 – Judicial Review
- Corporate fraud: The Sarbanes-Oxley Act protects employees of publicly traded companies from retaliation for reporting fraud or securities violations to a federal agency, a member of Congress, or an internal supervisor.10Office of the Law Revision Counsel. 18 USC 1514A – Civil Action to Protect Against Retaliation in Fraud Cases
- Securities violations: Under the Dodd-Frank Act, whistleblowers who report securities violations to the SEC can receive between 10 and 30 percent of sanctions collected in successful enforcement actions exceeding $1 million. Employers who retaliate face liability for double back pay and reinstatement.11Office of the Law Revision Counsel. 15 U.S. Code 78u-6 – Securities Whistleblower Incentives and Protection
The Public Policy Exception
Beyond specific whistleblower statutes, most states recognize a broader public policy exception to at-will employment. Even without a statute directly on point, courts will often find a firing wrongful when the employer terminated the worker for exercising a legal right, such as filing a workers’ compensation claim, refusing to commit fraud, serving on a jury, or reporting illegal conduct. The precise boundaries vary by state, but the core idea is consistent: the right to fire at will doesn’t extend to punishing people for doing what the law encourages or requires.
Speech at Work That Isn’t Protected at All
Some workplace speech isn’t just unprotected. It’s unlawful. Under Title VII of the Civil Rights Act, private employers with 15 or more employees must prevent harassment based on race, sex, religion, national origin, age, disability, and other protected characteristics.12Office of the Law Revision Counsel. 42 USC 2000e – Definitions
Speech becomes unlawful harassment when it is severe or pervasive enough that a reasonable person would find the work environment hostile or abusive. Isolated offhand remarks usually don’t meet this bar. The EEOC notes that “petty slights, annoyances, and isolated incidents” generally won’t qualify unless they are extremely serious, but a pattern of slurs, mockery, or intimidation targeting a protected characteristic can.13U.S. Equal Employment Opportunity Commission. Harassment That legal obligation is one reason many companies maintain codes of conduct far stricter than anything the Constitution would demand of the government.
Religious expression sits in its own category. Employers must make reasonable accommodations for an employee’s religious practices, including dress, grooming, and time off for observance, unless doing so causes substantial hardship. In Groff v. DeJoy (2023), the Supreme Court held that employers must show the burden is significant in the overall context of their operations, not merely more than trivial.14U.S. Equal Employment Opportunity Commission. Religious Discrimination At the same time, employers cannot force employees to participate in religious activities as a condition of employment or segregate workers based on religion.
Severance Agreements That Try to Buy Your Silence
Private employers frequently include non-disparagement and confidentiality clauses in severance agreements, asking departing employees to stay quiet about their workplace experience. In McLaren Macomb (2023), the National Labor Relations Board ruled that offering severance agreements with broad gag clauses violates the NLRA, because those provisions pressure employees into giving up their right to discuss working conditions or cooperate with labor investigations.15National Labor Relations Board. Board Rules That Employers May Not Offer Severance Agreements Requiring Broad Waiver of Rights
Even offering the deal is unlawful under the Board’s view. Employers can still protect genuine trade secrets and proprietary information through narrowly written clauses, but sweeping bans on any negative discussion of the company run afoul of Section 7.
State Laws That Go Further Than Federal Law
Federal law sets a floor. Some states go further.
Political Activity and Off-Duty Conduct
No federal law explicitly protects private employees from being fired over political speech or lawful off-duty activity. Roughly a dozen states have enacted statutes restricting employers from disciplining workers for lawful political conduct on their own time and off company premises, typically covering things like campaigning, attending rallies, or running for office. Some states go further and protect any lawful off-duty activity. In those states, an employer that fires someone over off-duty speech generally has to justify the decision by pointing to a real business conflict. Outside those states, private employers face no federal restriction on firing employees for their political views.
Speech on Private Property
The First Amendment doesn’t require private property owners to allow speech on their premises, but a state can independently provide that protection. In Pruneyard Shopping Center v. Robins (1980), the Supreme Court held that a state constitution may grant free speech rights on privately owned property open to the public, such as a shopping mall, without violating the property owner’s federal rights.16Justia Law. Pruneyard Shopping Center v. Robins, 447 U.S. 74 Only a handful of states have interpreted their constitutions this way. In most of the country, private property owners retain full control over speech on their premises.3Congress.gov. Constitution Annotated – Quasi-Public Places