Federal Court Allows First Amendment Claim to Proceed in Firing Over Charlie Kirk Post

In McVeigh v. Kelly, decided last week by Chief Judge Allen Winsor of the U.S. District Court for the Middle District of Florida, the court ruled that a terminated employee’s First Amendment claim can move forward. The ruling comes after the employee, identified as McVeigh, was fired following a social media post about the assassination of conservative commentator Charlie Kirk.

At this stage in the litigation, the court accepted all well-pleaded factual allegations in the complaint as true. According to the complaint, McVeigh worked as a financial administrator for a state department. Shortly after Kirk’s assassination, McVeigh posted a photograph of Kirk on his private Instagram account with the caption:

"At least this racist just didn't get a nicked ear. Where were all the good guys with guns though? THOUGHTS AND PRAYERS. LET'S NOT MAKE THIS POLITICAL etc."

The private Instagram account was accessible only to McVeigh’s friends and did not identify him or his employer. McVeigh also changed his Facebook profile photo to a graphic that read, "Not the American government asking us not to wish death on people." Unlike the Instagram post, this Facebook photo was public and visible to any internet user. Neither the Instagram nor Facebook post identified the department as McVeigh’s employer.

An acquaintance later texted McVeigh, accusing him of "wishing death" on individuals who shared Kirk’s beliefs. In response, McVeigh edited his Instagram post to remove a sentence for tone. On September 15—five days after Kirk’s assassination—McVeigh received a termination letter from human resources. The HR officer told him the termination was "[s]omething to do with Charlie Kirk … a post you made or something like that."

A few days later, McVeigh discovered an Instagram account that had compiled his Facebook photo, Instagram post, and LinkedIn profile. The account also included a copy of a communication sent to the department about McVeigh’s posts. McVeigh believes the acquaintance reported his posts to the department.

First Amendment Claim Requirements

To succeed on his First Amendment claim, McVeigh must demonstrate three elements:

1. His posts were made as a private citizen and involved a matter of public concern;
2. His free speech interests outweighed the employer’s interest in effective and efficient fulfillment of its responsibilities (the Pickering v. Board of Education (1968) balancing test); and
3. His posts caused his termination.

The department did not concede any of these elements but focused solely on the second one—the Pickering balancing test. Because the department did not argue the first or third elements, the court assumed McVeigh had pleaded enough to satisfy them.

Pickering Balancing Test Explained

The Pickering test seeks to balance an employee’s interest in commenting on matters of public concern against an employer’s interest in efficiently providing public services. Courts consider three factors in this balancing:

1. Whether the speech impedes the government’s ability to perform its duties efficiently;
2. The manner, time, and place of the speech; and
3. The context within which the speech was made.

The Pickering balancing can be fact-intensive and often cannot be resolved at the motion-to-dismiss stage. However, a plaintiff must allege sufficient facts to allow the court to infer that they could survive the balancing test. The court ruled that McVeigh’s complaint met this standard, allowing the claim to proceed.