First, let us start by saying that we are saddened by the tragic and violent events that occurred in Charlottesville over the weekend. Our hearts go out to the families and friends of Heather Heyer, Lt. H. Jay Cullen, and Berke M.M. Bates.
Second, let us address a question that is appearing on a lot of social media threads — can/should the Neo-Nazis who participated in Saturday’s protest be fired from their jobs?
“Should” they be fired is not really a question we can answer. That is certainly up to each individual’s employer.
Can they legally be fired? The short answer is yes.
It appears that many people who were outraged about Saturday’s rally by white supremacists have taken to using online sources to “out” the identities of those present at the rallies. There is already a report of at least one employer who has terminated one of the individuals identified as being at the rally.
Generally speaking, the First Amendment protects speech from government action. Similarly, its right to free assembly is a right to be free from government interference. It simply does not apply to private employers.
Employees of public employers do have First Amendment rights, but those rights are not unfettered. Without going into a dissertation on Constitutional law, the case law provides that speech is only protected if they are commenting as a private citizen on a matter of public concern. See, for example, Pickering v. Board of Education, 391 U.S. 563 (1968).
There certainly is an argument that raising a Nazi salute or chanting derogatory statements about Jews and people of color is not speaking about a matter of public concern. Even if it is, the Pickering case requires courts to balance the interest of the employee in speaking against the employer’s interest in not undermining its mission. Courts have held that permitting racist speech of employees causes the public to lose faith in the public employer and thus is not protected.
In short, if any private employer wishes to fire any of the individuals who have been identified as participating in the white supremacist rally, they can legally do so. Likewise, public employers probably will also be able to do so without running afoul of the First Amendment.
One big caveat: this is really only a discussion of First Amendment protections. Some states have laws that might protect employees who engage in off-duty political expression. Employers are still advised to consult with legal counsel before taking action in cases such as these.