Last year, Juli Briskman became a media sensation after she was photographed riding her bicycle next to President Trump’s motorcade and extending her middle finger. The incident continued to generate news following the Virginia resident’s termination from her government contracting job. Now, Ms. Briskman is suing her former employer, Akima LLC, for wrongful discharge.
In her recently filed complaint, Ms. Briskman alleges that Akima infringed on her First Amendment rights. She claims that executives at the company told her that sharing the image on social media not only violated Akima’s obscenity policy but could provoke retaliation from the Trump administration.
This case should interest business owners regardless of the newsmaking event that precipitated it. First, there is the question of what constitutes wrongful discharge. Virginia is an employment at will state, which means that employees of private companies can be terminated for any reason and without prior notice. This default relationship can be modified if the two parties enter into an employment contract or another form of agreement that expressly dictates the terms and conditions of employment. Ms. Briskman was an at-will employee, so Akima did not need to provide her with cause for termination, but opted to do so nonetheless.
Second, there is the matter of free speech. The First Amendment does not protect individuals from the consequences of their speech, which may include job loss. Courts in numerous states, including Virginia, have upheld the decisions of employers to fire or discipline an employee for something that individual said or published online, including comments the individual made while away from work and off the clock.
In this case, the court will balance whether Akima’s reason for asking Ms. Briskman to resign, which pointed directly to conduct that occurred while off-duty, is a violation of her free speech rights. I recommend watching this opinion to see how Virginia courts respond to Ms. Briskman’s complaint, and if and how the outcome alters our understanding of private employees’ constitutional protections.
Have a question about free speech, termination, or another real estate, labor and employment, or commercial litigation matter?
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ABOUT THEODORA STRINGHAM
Theodora Stringham focuses her litigation practice on providing diligent attention to clients’ needs. She distills complicated and contentious issues into a succinct and persuasive manner for negotiation and trial presentation.
Theodora litigates complex land use issues, including but not limited to, eminent domain/condemnation matters, zoning disputes, access, and valuation concerns. She has served as a fee counsel for the Virginia Department of Transportation and has also provided representation to individual landowners and developers alike.
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