The First Amendment states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Because the Amendment refers only to “Congress,” the Supreme Court has found that this provision applies to state and local governments. Importantly, the First Amendment does not refer to actions by private individuals. This is one of the most widely misunderstood issues related to the First Amendment. Allow me to explain.
There are many examples of people making statements and then being terminated from their employment as a result of those statements. One of the first cries heard is, “they” can’t do that because “they” are violating the fired employee’s right to free speech. This claim assumes that the United States Constitution prohibits employers from terminating people based on what they say. This is simply not the law.
The vast majority of people work for someone else, an employer. Most of those people are “at will” employees, which in Pennsylvania means the employer can terminate an employee for good reason, bad reason, or no reason. (While on its face that may sound harsh, it is important to remember that employees can also leave their jobs for good reason, bad reason, or no reason, and the employer can't force them to stay.) Given that most employees are “at will”, an employer is free to terminate an employee whose words or actions do not reflect the values of the employer. And the First Amendment does not protect them because the employer is a private organization, not the Government, and therefore the First Amendment does not require the employer to protect or allow free speech.
Just as widely misunderstood is the type of speech that is protected from government interference. First, not all speech is protected. Indeed, the following types of speech are not protected by the First Amendment: 1) incitement - speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”; 2) fighting words - speech that is intended to incite the listener(s) to respond with immediate violence; 3) obscene material - most people know it when they see it; 4) defamation - a false statement that tends to “blacken” one's reputation in the community, and 5) fraud - a false representation of a material fact, with knowledge that the representation was false and made with “intent to mislead the listener.” Even when speech does not fall into one of these categories, and this protected, a citizen’s right to speak is still subject to reasonable restrictions as to the time that such speech is allowed, the place where such speech is allowed, and the manner through which the speaker may communicate their message.
To summarize, the First Amendment only applies to the government or state actors, not private individuals and corporations, and not all speech is protected by the First Amendment. Freedom of speech, while a foundational right of our free society, is not absolute, and all citizens should understand the limits of their right to free speech before they speak.