MINNEAPOLIS - Can you get fired for going to a Neo-Nazi rally? Well, it's complicated.
Let's start with the locals who lost their gigs at the Uptown Diner; did the diner have the right to fire them for a social media photo of them in Nazi digs?
In short, yes.
“The First Amendment does not apply to private employers, it does not apply to them so it is not illegal per se for a private employer to fire someone for saying something off the job,” said Dan Ballintine, an employment attorney at Larkin Hoffman.
Saying something or, in this case, being shown in a photo.
The Uptown Diner is a private employer, so it was within its right to terminate the two men.
The only way it would NOT be able to do so as a private employer would be if it fired the two for reasons of age, national origin, race, ethnic background, gender, or religious beliefs.
None of those fall into, thus far, what happened.
So let's draw this question out to public employees.
“Generally speaking public employees have a right to under the First Amendment to not be fired for their opinions expressed off the job,” Ballintine said.
So why generally speaking for public employees? Well, a supreme court case called Pickering vs. the Board of Education in 1968 said public employees could speak out off-duty if the topic was of 'public concern.’
For example, let’s say a maintenance worker at the state University went to a Neo Nazi rally on his off hours and marched, didn’t act out violently or threaten anyone with violence (directly or indirectly.)
He or she didn’t do it on the clock or as a representative of his employer. He might not be fired – as he could argue he was attending of his own time to an issue of public concern. Now, that may not meet the criteria of public concern, but this is just an example.
If he or she did this and it had nothing to do with his work or how he would perform at work, well, he may not be fired. Public cases like this a highly individual and completely unique to each circumstance so it is impossible to say a public employee can always be fired for attending a rally like the one that occurred in Charlottesville.
One thing that must be noted, if the person in question, the public employee off the clock, goes to a rally like that and chants violent speech, threatening to a group or a person, that's not protected by the First Amendment. And that can much more easily land you out of a job.
So if you march and chant death to a group, well, you may want to prepare to lose your job.
Just because you speak, doesn't make it protected speech. Can't yell fire in a crowded theatre ... remember?