Every lawyer learns in their first year of law school’s Constitutional Law class that the First Amendment does not shield people from the consequences of their statements. Free speech guarantees only prohibit the government from taking action based on displeasure with the contents of the statements. With this basic legal principle in mind, how can the plaintiff in a new lawsuit claim that the First Amendment nevertheless protects her from an adverse action taken by her private sector employer when she was photographed making an obscene gesture toward President Trump’s motorcade?

Reporters photographed the gesture, which quickly became viral. The plaintiff shared the photograph on her Facebook and Twitter accounts, and was fired shortly thereafter for violation of her employer’s social media policy. In Briskman v. Akima LLC, a wrongful discharge suit filed in state court in Virginia, the plaintiff claims that her employer told her that she was being fired based on fears that the Trump administration would retaliate against her employer, a federal contractor. She claims legal protections for her behavior based on a theory that concerns over possible punitive government measures against her private sector employer constitute the necessary “state action” to fall within the First Amendment’s purview.

Although unlikely, if eventually upheld, this legal theory could substantially expand constitutional protections for employees working outside of the public sector. Employees could allege a wide range of scenarios where their employer takes adverse action against them based on statements that could lead to some retaliatory response against the company by an elected official or government agency.