Brooklyn Law Review


At a time when the freedom of speech is increasingly under attack, the question becomes: what protections are available to employees of private companies who wish to engage in political expression while off the clock? Although public employees are in many ways protected by the First Amendment from government intrusion into their political speech, private employees in many states are left largely unprotected. This note examines the current statutory protections offered to protect private employees from being fired or retaliated against based on their political opinions, and argues that the inconsistency and unpredictability of state laws call for a uniform regulation at the federal level. In assessing the need for federal regulation, this note turns to two modern instances in which private employees have been subjected to adverse employment action based on their political activity: (1) Google’s firing of James Damore for his memo challenging the company’s diversity practices; and (2) Cole White’s termination from a small hot dog chain in California after a Twitter account posted photos of him attending a white supremacist rally in Charlottesville, Virginia and demanded his termination. This note considers arguments about whether this speech should be protected, and finds that First Amendment jurisprudence supports the addition of federal protections for private employees. Given that political opinions and ideologies are increasingly visible in the modern era, this note ultimately proposes that Congress pass a law providing political speech protections for private employees.