When Public Outrage Becomes an Excuse To Fire You – ACLJ Files Supreme Court Brief in Support of Free Speech

The First Amendment exists to limit the government’s power to punish speech, not to guarantee universal approval. It protects speech that makes people uncomfortable, particularly speech on political and public issues that provoke strong disagreement, such as abortion.

That’s why the ACLJ recently filed an amicus briefasking the U.S. Supreme Court to step in and draw a clear line on the question: When can a government employer punish a worker for something they said on their own time?

Lately, courts have been getting that answer wrong.

More and more public employees are being disciplined or fired – not because their speech interfered with their job – but because other people got angry about it. Many conservative speakers have found themselves the target of this outrage. Emails flood in. Social media erupts. News outlets pile on. And instead of asking whether the employee actually stopped doing their job or was no longer capable of doing it, employers point to the outrage and call it “disruption.”

But this is not what the Constitution allows – add your name to our petition: Defeat the Left’s war on freedom.

The Supreme Court has already set the rule. A government employer can restrict an employee’s speech only if that speech actually interferes with how the job gets done. In plain terms: Did it interfere with the work?

As we explained to the Court:

To be restricted, speech must threaten or actually damage the public mission and function of the school in an evidentially demonstrable way.

That’s common sense. People arguing about something online isn’t the same as a workplace falling apart – particularly when the people engaged in debate or upset by the speech are the general public, not colleagues or employees in the same workplace. Being controversial does not always equate to being disruptive.

The First Amendment doesn’t disappear just because people feel offended or uncomfortable. Courts have long recognized that

undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. . . . Allowing speech to be curtailed simply because it generates controversy misunderstands the Pickering–Garcetti balancing test. That test requires more than discomfort or disagreement: the government employer must show that the speech either caused actual disruption to the functioning of the government entity or that the employer reasonably predicted such disruption to its operations.

But in the case at issue, the lower court treated public anger itself as proof of disruption – without showing that classrooms were disrupted, teaching stopped, or students were harmed. That is problematic.

If courts allow outrage to count as “disruption,” then your speech rights depend on how loudly other people complain.

That’s a dangerous rule.

It means if enough people disagree with you – and make enough noise – your employer can claim your speech caused a problem, even if you did your job just fine.

As the ACLJ warned the Court:

Government employers may point to a chorus of ideological opposition as proof of disruption and use it to justify firing the speaker.

In legal terms, that is called a “heckler’s veto.” In other words: getting fired because someone else threw a fit.

The Constitution does not allow the loudest voices to control who gets to speak.

Some courts have tried to justify this by pointing to social media. In this case, the lower court said that because the speech was posted online, it carried a greater “risk” of spreading – and that counted against the employee.

But risk isn’t the same as reality.

As our brief explained:

An “increase in potential” for disruption is not itself disruption and should not weigh in the government’s favor absent more evidence. This effectively gives government employers the ability to look at community outrage and, rather than accept the controversy that constitutionally protected speech brings, claim disruption with added deference to their opinion.

Social media makes it easier to stir up outrage fast – even by people who have nothing to do with the workplace. That makes clear rules more important, not less. Otherwise, any viral backlash becomes an excuse to punish speech.

At the end of the day, the legal question is simple: Did the speech actually interfere with the government’s ability to do its job – or not?

As our brief puts it:

The disruption alleged or predicted by the government must reasonably relate to the functions it serves, and not merely the avoidance of controversy.

In a school, that means teaching, classrooms, and student safety – not bad headlines or angry emails.

Government employers don’t get to silence workers just to avoid criticism.

Our amicus brief urges the Supreme Court to make one thing clear: Outrage alone is not sufficient evidence of disruption. Indeed, “[i]f this sort of ‘disruption’ is allowed to curtail the speech rights of government employees speaking in a private capacity on issues of great public concern, then the heckler’s veto is in full effect.”

Public employees don’t give up their constitutional rights just because someone else gets offended. And the First Amendment doesn’t vanish the moment controversy shows up.

The Constitution demands more than outrage. Take action with the ACLJ and add your name to the petition: Defeat the Left’s War on Freedom.