Clarifying the Scope of Tennessee’s Right to Petition: Government Entities Only, Not Private Employers

Introduction

In Heather Smith v. BlueCross BlueShield of Tennessee, decided March 26, 2025, the Tennessee Supreme Court confronted a novel question: whether an at-will employee can sue her private employer for wrongful termination on the ground that her discharge violated her constitutional right to petition under Article I, Section 23 of the Tennessee Constitution. Heather Smith, a ten-year employee of the private insurer BlueCross BlueShield of Tennessee, emailed state legislators to protest her employer’s COVID-19 vaccine mandate. When BlueCross terminated her for violating company policy, she sued for common-law retaliatory discharge, asserting her firing chilled her right to petition. The trial court dismissed her complaint. The Court of Appeals reversed. The Supreme Court granted review and, after a detailed historical, textual, and comparative-law analysis, reversed the appellate court, holding that Tennessee’s constitutional right to petition binds government actors only and cannot form a basis for a public-policy exception to at-will employment by private employers.

Summary of the Judgment

Chief Justice Kirby, writing for a unanimous Court, reaffirmed Tennessee’s long-standing doctrine of at-will employment—the rule that either employer or employee may terminate the relationship at any time, for any reason or none. Tennessee law does recognize a narrow public‐policy exception (commonly called retaliatory discharge) when an at-will employee is fired in retaliation for exercising a statutory or constitutional right or for complying with an unambiguous public policy. The Court held that Article I, Section 23—the right to assemble, instruct representatives, and petition government for redress of grievances—has for centuries been understood as a restraint on government, not on private parties. No Tennessee precedent, nor any decision from another state, has ever applied the constitutional right to petition to limit a private employer’s ability to terminate an at-will employee. Therefore, Smith’s claim failed as a matter of law. The Supreme Court reversed the Court of Appeals, affirmed the trial court’s dismissal under Tenn. R. Civ. P. 12.02(6), and remanded with instructions.

Analysis

1. Precedents Cited

Payne v. Western & Atlantic Railroad (1884): Early articulation of the at-will employment doctrine in Tennessee.
Clanton v. Cain-Sloan Co. (1984) & Chism v. Mid-South Milling Co. (1988): Recognition of a common-law tort of retaliatory discharge as a narrow exception to at-will rule when an employee is discharged for exercising statutory or constitutional rights or for violating a clear public policy.
Mason v. Seaton (1997), Stein v. Davidson Hotel Co. (1997), Guy v. Mutual of Omaha Ins. Co. (2002), Williams v. City of Burns (2015): Restatements of the at-will rule and the retaliatory-discharge tort elements.
Rigsby v. Murray Ohio Mfg. Co. (Tenn. Ct. App. 1991): Refusal to extend First Amendment free-speech protection to private-sector retaliatory-discharge claims.
McKee v. Hughes (Tenn. 1916): Citizens’ petitioning of municipal authorities is not an unlawful purpose for conspiracy; confirmed the high value of the right to petition, but did not extend it against private parties.
Cologne v. Westfarms Associates (Conn. 1984), Woodland v. Michigan Citizens Lobby (Mich. 1985), Citizens for Ethical Government v. Gwinnett Place (Ga. 1990), Western Pennsylvania Socialist Workers 1982 Campaign (Pa. 1986): State constitutions’ petition clauses construed to constrain only government action and not private property owners.
Edmondson v. Shearer Lumber Products (Idaho 2003), Grzyb v. Evans (Ky. 1985): State free-speech/assembly guarantees (same clause as petition) held inapplicable to private employers in wrongful termination context.

2. Legal Reasoning

The Court’s reasoning proceeds in three broad steps:

At-Will Doctrine and Retaliatory Discharge Exception: Tennessee law generally permits termination of at-will employment for any reason or none. A limited public-policy exception allows wrongful-discharge suits when the employer fires an at-will employee for exercising a statutory or constitutional right or for other reasons that violate a “clear public policy” evidenced by an unambiguous constitutional, statutory, or regulatory provision.
Textual and Historical Analysis of Article I, Section 23: The text simply declares a right of citizens “to apply . . . for redress of grievances,” without explicitly limiting the provision to government actors or, conversely, extending it to private entities. We look to 800 years of Anglo-American history—from Magna Carta through the English Bill of Rights of 1689, colonial declarations of rights, the Stamp Act Congress, the Declaration of Independence, state bills of rights, the Federal Bill of Rights, and Tennessee’s own 1796, 1834, and 1870 constitutions—to discern the framers’ intent. Consistently, the petition right was a shield against government reprisals, not a restriction on private parties.
Comparative-Law Support: Nearly every state that has addressed whether its constitutional petition clause is enforceable against private parties has said “no.” Absent a single judicial decision anywhere holding that a private, at-will employer violates public policy by firing an employee for petitioning, Tennessee must follow the majority approach, consistent with the limited scope of retaliatory-discharge tort.

Applying that analysis, the Court held Article I, Section 23 binds only government action and cannot support a tort claim against a private employer. BlueCross’s enforcement of its social media policy and the resulting termination of Smith were lawful under at-will doctrine.

3. Impact

This decision settles a question of first impression in Tennessee:

No private-sector at-will employee can base a retaliatory discharge claim on Article I, Section 23’s right to petition.
The public-policy exception to at-will employment remains narrow: only statutes, regulations, or constitutional provisions that clearly apply to private parties can serve as its foundation.
Private employers need not fear constitutional liability for terminating employees who petition the legislature, though they remain free to adopt internal policies protecting employee petitioning if they choose.

Going forward, litigants will look instead to statutory causes of action (e.g., Tennessee’s Public Protection Act) or other clear legislative directives if they wish to protect petitioning activity in the private employment context.

Complex Concepts Simplified

At-Will Employment: An employment relationship that either party may end at any time, for good reason, bad reason, or no reason at all.
Retaliatory Discharge: A narrow exception allowing an at-will employee to sue for wrongful termination if the firing violates a clear public policy rooted in law.
Right to Petition (Art. I, § 23): The constitutional guarantee that citizens may peaceably assemble, instruct their representatives, and apply to government for redress of grievances—historically designed to protect petitioners from government reprisal.
State Action Doctrine: Constitutional protections, like free speech or petition, generally limit governmental conduct, not private individuals or businesses.

Conclusion

In Heather Smith v. BlueCross BlueShield of Tennessee, the Supreme Court of Tennessee reaffirmed the at-will employment rule and its narrow public-policy exception. After exhaustive textual, historical, and comparative analysis, the Court held that Tennessee’s constitutional right to petition (Art. I, § 23) protects citizens only against government action and cannot underpin a wrongful-discharge claim against private employers. This ruling preserves employers’ freedom to make business decisions without constitutional constraints while leaving open the possibility that the legislature might enact statutory protections for employees who petition government on private time.