As I noted in yesterday’s UW Chancellor post, the First Amendment generally doesn’t prevent government employers from firing employees for making porn videos off-duty: Porn is generally viewed as speech that’s not on “matters of public concern” for purposes of First Amendment employment law. (Much porn is protected against criminal prosecution or civil liability, but not against government employer retaliation.)
Likewise, the state statutes and local ordinances that protect speech by employees, including private employees, generally limit themselves to “political activity.” Whether that’s defined broadly or narrowly, it’s unlikely to cover making of garden-variety porn. A New Hampshire law protects speech by government employees, but is limited to the “right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies.”
But four states, by my count, might protect employees who make porn off-duty from employer retaliation. Colorado law provides,
North Dakota similar provides,
Naturally, one can debate when the exceptions apply, and that might turn on the employee’s particular job. (For instance, high-level employees that are supposed to be institutional leaders and role models might be subjected to greater restrictions than rank-and-file employees.) But if the making of the porn is “lawful”—i.e., doesn’t include child participants and thus isn’t “child pornography,” and isn’t so hard-core as to be punishable “obscenity”—the statutes would at least presumptively apply.
New York law similarly provides,
The law would thus likely forbid firing for viewing pornography (unless one of the exceptions applies), but it’s not clear whether noncommercial creation and posting of pornography counts as behavior that “is generally engaged in for recreational purposes.”
Montana is the one state that generally bars employers from firing people without good cause:
Again, one would have to consider the facts of the particular incident and job category, but at least some employees are likely to be protected by this. (Of course, in all states employees can also be protected by contracts that allowing firing only for cause—such as labor contracts, tenure contracts, and other such contracts—though that of course depends on the particular terms of the contract. And in some jurisdictions employees may also be protected by civil service protections that require “good cause” to fire.)
Finally, note that, if a state law does bar firing employees for certain kinds of activity, employment contracts can’t trump those statutory rights—just as an employer can’t insist that employees waive their rights not to be discriminated against based on race, not to be harassed based on sex, or not to be fired for their legally protected religious activities. But a contract might be relevant to the interpretation of a statute, for instance, if it sets forth specific obligations for a particular class of employees that’s related to their employment responsibilities.