When may the government fire or discipline public employees for off‐the‐job speech? Salvatore Davi is a hearing officer at a New York state agency that hears appeals of welfare claims. In a private Facebook discussion Davi made comments critical of permanent welfare dependency and argued that a public safety net should be intended to help people regain self‐sufficiency. These comments offended another member of the group, who complained to Davi’s employer and leaked a copy of his comments to a legal activist group representing welfare recipients.

Under the First Amendment of the United States Constitution, “Congress shall make no law … abridging the freedom of speech.” This makes it clear that the government generally cannot censor the speech or expression of private citizens. The line becomes hazier when the government is acting as an employer: as with any other employer, the government must have some ability to discipline and control its employees if it is to function at all.