Judge Confirms: You Can Be Fired for Flipping Off the President without Violating Your First Amendment Rights

At the end of last year, I shared about the case of Juli Briskman, who was photographed flipping the bird at President Trump’s motorcade. Her company, which oversees government contractors, fired her after she shared the photo on social media. Briskman then filed a wrongful termination claim.

Now we know the outcome of that claim.

As I expected, freedom of speech did not help Briskman get her job back. The First Amendment protects us from government action to chill or punish free speech, but not private action that does the same. In this case, the First Amendment did not apply.

Instead, the Virginia judge was asked to consider whether this was disparate treatment since another company employee wasn’t fired after posting a crude and vulgar statement in a Facebook conversation about the Black Lives Matter movement.

The company’s lawyers argued that there was no public policy exception to Virginia’s at-will employment doctrine. Generally, Virginia employers can fire someone without establishing just cause. The judge agreed, dismissing the wrongful termination claim.

In my opinion, this was the right call. Freedom of speech means we are free from government restriction on our speech; it does not mean that we are free from other consequences of our speech.

What we do and say, even outside of work, can impact our career. That doesn’t mean we shouldn’t speak up or protest. But we should always choose our words carefully.

In Briskman’s case, it wasn’t the act of flipping the bird that caused her problems. It was her choice to brag about it on social media that cast an unfavorable light on her employer. If she hadn’t posted on social media, it’s likely she would still be working for her old employer today.