To say the last few weeks' news cycle contained endless amounts of discourse regarding Charlie Kirk's September 10, 2025 assassination would be an understatement. We have seen differing responses from both ends of the political spectrum, with some calling for gun reform and highlighting Kirk's more divisive opinions, while others memorialize him as a conservative hero and strategize Turning Point USA's next steps. The only semblance of common ground stems from the agreement that political violence is unjustified and continues to be a persistent national concern in America.
The controversy escalated further when a famous late-night comedian's show was axed “indefinitely” by ABC after Kimmel's monologue addressed Kirk's assassination. After hearing Kimmel's comments, the FCC chair, Brendan Carr, went on a podcast and noted there was a “path forward for suspension over this” with respect to the stations broadcasting Kimmel's show. The threat of suspension from the head of a government agency allegedly prompted ABC and other broadcasters to suspend Kimmel's show. Similarly, other private employees, such as professors and journalists, have been facing the wrath of disapproval for their social media posts and have been purportedly terminated for such speech.1 Once again, questions of speech in the workplace have been brought to the forefront of politics, and the line between protected and unprotected speech as a private employee is as confusing as ever.
If disciplined or terminated for alleged speech issues in the workplace, there are a host of sources employees may rely upon for protection, depending on their situation. At the federal level, the most widely recognized safeguard – the First Amendment of the U.S. Constitution – primarily shields public employees and individuals from government action seeking to curtail speech.2 Free speech specifically refers to a public employee or individual's right to express ideas or opinions without government censorship. It does not apply to many private employees, however, absent unusual circumstances, such as when the FCC may have influenced ABC's suspension of Kimmel, or when the Vice President of the United States encouraged the public to report employees who shared controversial opinions on Kirk's assassination to their employers.3 Thus, most private employees must look beyond the First Amendment for legal protection.
The National Labor Relations Act (“NLRA”) protects employees' rights to discuss unionizing, workplace safety, wages, and collective bargaining that are considered “concerted activities” for “mutual aid or protection,” even if those employees are not unionized.4 Employees receive this strict protection during and outside work hours, and it has even been extended to social media postings. Still, the NLRA is limited: it does not always apply to an employee's speech and conduct, making it critical for employees to consider alternative sources of protection to assess if there are better-suited insurances.
In New York, employees may explore several avenues for speech protection under state law that describes permissible conduct, that may be used to protect certain speech, for private employees.5 For instance, New York Labor Law is broader than most states and protects “off-duty” conduct that covers some of an employee's actions outside the workplace.6 NYLL § 201-d prohibits employers from firing (or refusing to hire) employees for their “political” or “recreational” activities outside of work hours.7 Unfortunately, the language within the statute has proven to be incredibly vague, and courts have done little to clarify the effect for employees and employers. Relevant here, the statute defines “political activities” as running for public office, campaigning for a candidate, political party, or political advocacy group, meaning essentially, the statute requires more than general political expression.8 Although it may seem intuitive that the statute would protect employees' after-hours social media posts related to politics, the plain text of the statute has overridden these more expansive arguments for interpretation. Still, employees may have success defining their political involvement outside of work hours as “recreational activities” under the statute, so long as they are not paid for the activity. New York defines recreational activities as including, but not limited to, sports, games, hobbies, exercise, reading, and the viewing of television, movies, and similar material. New York has recognized attending a political rally on the weekend as protected pursuant to NYLL § 201-d(1)(b).
The off-duty statute does, however, provide a safe-harbor provision for employers that states an employer may take an adverse action, such as firing an employee, if the employee's conduct (or speech) “creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest.” An employee therefore must remain cautious when engaging in speech or conduct, even outside of work hours, that could result in damaging their employer. Additionally, NYLL § 201-d does not protect on-the-clock political speech, speech that creates a hostile work environment for your co-workers based on protected classes such as gender, race, religion, among others, or illegal activities. Like any protected speech inquiry, these carve-outs and exceptions are best assessed through a legal analysis that evaluates an employee's position, employer's interests, and the speech's context. The many nuances in a speech analysis are just one of the reasons why many employees may struggle to discern the scope of statutory protection (if any) afforded to them at their job.
Beyond § 201-d, New York Labor Law prohibits employers from retaliating against an employee for disclosing or expressing intent to disclose, to a supervisor or a public body (ex. A local governmental body or one of its employees) a policy or practice of the employer that the employee reasonably believes is a violation of law or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.9 This can include complaining about discrimination or even tax evasion claims. An employee's actions and speech related to such “whistleblowing” claims are considered protected activity.
Under Title VII, New York State Human Rights Law (“NYSHRL”), and New York City Human Rights Law (“NYCHRL”), employees are protected for their speech or actions related to opposing or reporting discrimination, harassment, or retaliation based on gender, sex, religion, race, national origin, disability, etc. Tying speech to a genuine concern about the latter grants employees strong recourse. It is important to note, however, that these protections encompass speech raising legitimate concerns about unlawful discrimination or retaliation, but do not extend to discriminatory speech itself.
Another statute a New York state employee may want to consider is the “captive audience” law.10 This labor law prevents employees from being compelled to attend employer-organized meetings whose primary purpose relates to religion, politics, or discussing the employees' rights to unionize. Thus, as much as employees in certain employment situations have the right to speech, they also have the right not to hear certain speech from their employers in the workplace.
Following Kimmel's suspension, fierce boycotts and protests against ABC, and Disney – ABC's parent company – ensued. Ultimately, Kimmel returned to television less than a week after his suspension and touted the country's impressive efforts to support free speech, even complimenting his rivals, stating, “And most of all, I want to thank the people who don't support my show and what I believe, but support my right to share those beliefs anyway.”11 Kimmel's monologue highlighted a core American tenet: the right to voice dissent. Although private employees do not enjoy unfettered speech in the workplace, there are still channels of recourse for unlawful silencing by your employer, and in severe cases, the government. The constant battle between at-will employment, federal and state anti-discrimination laws, and individuals' constitutional rights creates challenges for employees to access and understand where they are protected. Today's political climate is all the more reason to understand the intricacies of your protections as an employee and to support others' rights to do the same.
Footnotes
1. Nadine Yousif, Report those who celebrate Charlie Kirk death to employers, Vance says, The BBC (Sept. 16, 2025), https://www.bbc.com/news/articles/cn0r5y33pj5o.
2. New York also replicates the First Amendment in its state Constitution, see Article I, Section 8 of the New York Constitution.
3. Nadine Yousif, Report those who celebrate Charlie Kirk death to employers, Vance says, The BBC (Sept. 16, 2025), https://www.bbc.com/news/articles/cn0r5y33pj5o.
4. Section 7 & 8 of the NLRA.
5. Non-unionized, private employees are entitled to the protection of New York labor laws, subject to exceptions.
6. See NYLL § 201-d.
7. Work hours are defined as paid and unpaid breaks and meal periods, that the employee is expected to be engaged in work, and all the time the employee is actually engaged in work. 201-d(1)(c).
8. NYLL § 201-d(1)(a).
9. NYLL § 740.
10. NYLL Sec. 201-d(2)(e).
11. Adrian Horton & Anna Betts, Jimmy Kimmel says silencing comedians is ‘anti-American', as his show returns to air after suspension, The Guardian, (Sept. 24, 2025), https://www.theguardian.com/tv-and-radio/2025/sep/24/jimmy-kimmel-says-trump-tried-his-best-to-cancel-him-as-his-show-returns-to-air-after-suspension.
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