Free Speech

Eugene Volokh | 12.17.2025 8:01 AM

[1.] The First Amendment applies only to the government, and thus doesn't limit private employers from firing employees based on their speech. But many states have statutes that do impose such limitations, as the map above suggests. (For more on this, see my  Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation and Should the Law Limit Private-Employer-Imposed Speech Restrictions? articles.)

Some of these statutes broadly protect a wide range of employee speech. Others protect particular forms of election-related activity: New York, for instance, bans employers from firing employees for campaigning for a candidate or raising funds for a candidate, party, or political advocacy group.

But New York also bans employers from firing employees for off-the-job "legal recreational activities," defined as

any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.

There is also an exception for activity that "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest."

Does blogging, Tweeting, etc. qualify as "recreational activities," much as "reading and the viewing of television, movies and similar material" qualifies? In yesterday's Sander v. Westchester Reform Temple, the N.Y. high court (in a majority opinion by Judge Caitlin Halligan for five of the seven judges) notes the issue but doesn't resolve it:

[The definition of recreational activities] sweeps broadly on its face …. The term "hobbies" has an expansive dictionary definition[, …] "a pursuit outside one's regular occupation engaged in especially for relaxation" …. Plaintiff argues that some hobbies surely have an expressive component and communicate content, and that reading or viewing media entails the selection of content as well. {We reserve this question of statutory interpretation for another day ….}

A solo concurrence by Judge Shirley Troutman, on the other hand, endorses the view of the

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