No First Amendment Protection for Private Employee

JOOTB_FinalAn Ohio appellate court recently held that a private company that fired an employee for allegedly posting a racist meme was not liable for a public policy violation.  The court found that the public policy in question – the free speech guarantee under the Ohio Constitution -- applies only to state actors.

Rita Hall worked for the Kosei St. Marys Corporation as a line supervisor. In June of 2020 she shared an image on Facebook that consisted of two juxtaposed pictures.  In the top picture, a number of monkeys are located on and around a car.  In the bottom picture, a number of African Americans are located on and around a car.  At least three of Ms. Hall's subordinates or coworkers raised complaints about this post with the associate relations department at KSM. Hall was subsequently terminated on June 24, 2020.

Ms. Hall filed a lawsuit against KSM.  Among other claims, Ms. Hall contended her firing violated Ohio public policy.  Ohio recognizes an exception to the at will employment doctrine for a wrongful discharge in violation of public policy as articulated in a specific statute.

Ms. Hall alleged that the free speech protections in the Ohio Constitution presented a clear public policy that satisfied the clarity element of this claim and quoted the following portion of the Ohio Constitution: "[e]very citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech * * *."  The appellate court framed the issue as whether the free speech protections in the Ohio Constitution provide a basis for the government to insert itself into the relationship between a private employer and an at-will employee.

While the Ohio Supreme Court has held that an employee may bring a public policy claim where an employee's termination violated the Constitutions of the Ohio and United States, it has also held that the free speech protections in the Ohio Constitution, like those in the United States Constitution, apply only to state actors.  That finding doomed Ms. Hall's public policy claim.  Ms. Hall took an overly broad view of the concept of public policy.  She essentially argued that Ohio's public policy is that a person may not be subject to discipline for the content of their speech.  But the policy is more narrow than she argued.  In fact, the public policy is that the state cannot punish a person based on the content of their speech.  A private employer is not bound by Constitutional free speech protections.

The appellate court ultimately ruled, "Hall's argument simply cannot overcome the weight of the legal authorities that take the contrary position.  Following the general rule, we conclude that, in the absence of state action, the free speech protections of the Ohio Constitution do not provide a basis for Hall, an at-will employee, to raise a wrongful termination in violation of public policy claim in this case against KSM, a private employer."

So, for private employees, the message from this case is clear – watch what you say.  And don't assume the Constitution will protect you from the consequences of your speech.


About The Author

Jack Greiner | Faruki Partner