Managing Risk Around Expression in the Workplace

In a Risk Management Magazine article, authors Michelle Arbitrio, Karin Schaffer, and Jacqueline Murphy of Wood, Smith, Henning & Berman LLP examine how online political discourse has redefined risk exposure related to expression in the workplace. 

They note that platforms like X, Facebook, and TikTok now serve as real-time forums for commentary on polarizing issues, creating reputational hazards for employers when employee posts attract controversy. The September 2025 death of conservative activist Charlie Kirk, followed by swift employment actions against individuals reacting online, exemplified how rapidly employers now respond to such speech.

The authors explain that at-will employment gives private employers broad discretion to terminate workers, though constitutional speech protections largely apply only to public employees. Citing Pickering v. Board of Education and subsequent rulings, they describe how courts balance an employee’s right to speak on matters of public concern against an employer’s interest in maintaining workplace order. 

State laws in places like California, New York, and Colorado provide additional off-duty protections, but these vary widely. Arbitrio, Schaffer, and Murphy emphasize that discipline for online expression can still trigger claims of discrimination, retaliation, or wrongful termination, especially if policies are inconsistently applied or appear biased.

Expression in the workplace presents escalating reputational and legal exposure for organizations. The authors recommend maintaining clear, consistently enforced social media policies, documenting decisions, and consulting counsel when employee speech intersects with protected categories. Ultimately, they conclude, employers must navigate a narrow line, protecting brand integrity while respecting employees’ rights in an era where private speech is public by default.