Employee Social Media Use: Employer Restrictions And The Issue Of Free Speech

With the advent of social media, new issues have arisen regarding the employer’s right to limit what the employee posts on social media. Many employers have adopted Employee Handbooks that contain written policies regarding what an employee may post during his off time on his own computer via social media.

Costco adopted a policy that restricted an employee from posting any statement that would damage the company, harm another person’s reputation, or violate the company’s policies. Employees that violated this restriction would be fired. When this policy was reviewed by the National Labor Relations Board, the NLRB ruled the policy violated federal labor law by restricting the employee’s right to engage in “concerted activities.”

However, a fireman that was dismissed from the job for violating the department ‘s social media policy and the court ruled that the policy was enforceable and ruled for the employer.

The issue is whether an employer should be allowed to restrict what an employee may post on social media during his off time and on his own computer. There are cases that support the conflicting opinions described above. Discuss the reasons offered to support such restrictive policies and the reasons such policies should be overturned. Specifically address the following:

1-Is the First Amendment guarantee of freedom of speech absolute?

2-Does it make a difference if the employer is a government agency as compared to a private employer? Should it?

3-Is this an area that the legislature should attempt to resolve legislatively? Why or why not?

First Amendment Guarantee of Freedom of Speech

Many of the Americans are familiar with certain parts of the First Amendments, however still most people cannot outline all of its parts. Most of the people usually are taught abound the First Amendment in either in eight grade or in high school, but the majority of the students only stop at that and never look at the constitution thereafter. It is true that many people have the knowledge about the freedom of religion, speech, and probably assembly, however, most of them do not right interpretation of the of the amendment. On the other hand, freedom of speech has a wide definition by the Supreme Court rulings and society. It had been elongated beyond what was written with our forefathers, but the technology has also advanced. Other than that, every person must remember that exercising ones rights should not lead to infringement of another person’s rights. Therefore, this paper intends to address whether an employer has the right to restrict what an employee might post on social media when he is not at work and when using his own computer.

The past Amendment of Freedom of Speech is absolute. In the past, the government was able to constitutionally imprison people whose ideas were contrary or suppressing its agendas. But after the creation of the First Amendment, such issues have been successfully balanced. The two ways through which the First Amendment might be interpreted as absolute are: First, the interpretation of the First Amendment can be in a manner that enables the government to prohibit freedom of speech.  Second, it may be interpreted in such a manner that prohibits some of the freedom of the speech. In some instances the court have supported the state on the speech made by private people who spread fake news or those who threaten those who have expressed their views. In such situations if the principles of constitution interpretation are well-done, the actions of those individuals do not constitute the state action, hence, do not call for the First Amendment.  Other than that, in an occasional instance, the court acted in faster, but a vague way with the state doctrine when it attempted to bring an important private act within the constitutional regulation. It is evident in the case Marsh v Alabam (1946) where it was held that the state trespassing statute should hinder religious distribution of materials on the sidewalk of the town, even if the sidewalk was the portion of a privately owned company town.

Government Agency versus Private Employer

Moreover, the other main issue is the use of multimedia to propagate lies that are intended to deform public conversation has currently risen to level of harm.  Even though, it is easy to say that the government should have the power to punish those who spread false information through the social media, the Supreme Court has rejected such punishment on the basis that they are automatically not supported by the First Amendment. The law says that those who spread intentional false statements through the social media may breach First Amendment only if it can be shown that such lies caused a significant harm such as defamation, fraud, and perjury (LomontE, 2014).

Furthermore, there have been mixed judgments in determining whether an employer has the right to restrict what an employee might post on social media when he is not at work and when using his personal computer. For example, in the case between Costco Wholesale Corporation and United Food and Commercial Workers Union, the National Labor Relations Board (NLRB) canceled various sections of the employee manual in Costco’s (PR Newire, 2012). One of the Costco’s employee rules prohibited employees from posting any statement that would harm reputations of another person, damage reputation of the company, or breach the company policies. However, on the ruling of this matter, the NLRB panel of three people held that the policies under the Costco Employee Agreement breach the labor organization’s right to free speech as stated under Section 8(a)(1) (PR Newire, 2012). It is also that the company prohibited protected activities under s 7 of the National Labor Relations Act.

It makes a difference if the employer is a government agency as compared to a private employer. The public sector employers are the government agencies that hire employees to perform public services and official function like public safety, education, and law enforcement. Because the employer is the government, the employees have been constitutionally granted some rights that the private sector employees do not enjoy. They only have some limited rights when it comes to the activities of the union and speech to let the government perform duties and because such employees hold positions that earn trust from the society. The US Constitution does not allow the government to interfere with a person’s freedom of speech, except if such speech infringes the ability of the government agency to function. Additionally, referring to case Garcetti v Ceballos (2006), it is clear that the First Amendment does not protect public employee statements made as part of their official duty (Adams, 2015).

Social Media Free Speech Regulation

It is also clear that any employee that may use social media to prevent the government agency from performing its duties efficiency shall be held liable for his actions. Other than that, the public employees are prohibited from posting unprotected speech if they cannot show that they were speaking as citizens on the matter of public concern (Hyman, 2017). Referring to the case Buker v Howard County, the court in its ruling stated that Facebook statements that were posted by Buker were unprotected speech because of being able to impede the government agency’s ability to perform its duties effectively (Hyman, 2017). Additionally, the court held that the Facebook post was amounted to unprotected speech because the complainant did not prove that he was just talking as a citizen on the issues of public concern. Other than that, the court concluded that the plaintiff Facebook post frustrated the mission of the public agency and threatened the trust that the community had in the agency, which is essentially vital to its function.

It should make a difference if the employer is a government agency as compared to a private employer. It is because if the public employees have no restriction on what they can post on the social media, they might spill out of the government’s secrets to criminals or terrorists who may use such information against the government or citizens.Such posts may also reduce the public trust in the government agency, hence reducing its efficiency in providing services to the public due to lack of trust. Therefore, public employees should have more restrictions on what they can post on the social media because of the safety ofcitizens and the nation at large.

Social media free speech is not an area that the legislators should attempt to solve legislatively. If they try to do that, then it will seem as if they are violating human rights’ freedom of expression. The reason why it is not an area to resolve legislatively is because if such regulations were allowed, the first major culprit would be the freedom of expression, but not the purveyors of fake news. Therefore, the only way the government can attempt to control what is being posted and viewed by the citizens is to reach out to the social media stakeholders for regulatory agreement that may assist in social media contents filtering. However, any attempt by the government to control the social media posts will be viewed as a breach of freedom of expression. The result would do more harm than the damage that can be caused by the foreign lies ever could. It is because the United States Constitution prevents the government from interfering with an individual’s freedom of speech (Lomont, 2014).

Conclusion

To conclude with, it is right to say that technology has provided a platform for free speech if not properly regulated may be used to infringe certain viewpoint and manipulation of the public opinion. On the other hand both the public and private employers need to understand well the contents of the First Amendment before developing employee’s regulations manual. Failure to consider what the Constitution and the NLRA says about the employee’s rights could lead to a breach of First Amendment and the National Labor Relations Act. On the other hand, employees should try and understand what both the NLBA and Constitution permits them to do when expressing their opinions as a citizen or an employee of the government or private firm. Notwithstanding, the concerns that the American people are raising concerning their freedom of speech, indeed, possesses serious threats to the future working of the Americans democracy.

References

Adams, M. (2015). Academic Freedom on Trial: Adams v. UNCW and the Welcome Erosion of Garcetti. Academic Questions, 28(1), 54-65.

Hyman, J. (2017). A Legal Firing for Fiery Posts.Workforce, 96(3), 24.

LomontE, F. D. (2014). Fouling the First Amendment: Why Colleges Can't, and Shouldn't, Control Student Athletes' Speech on Social Media. Journal Of Business & Technology Law, 9(1), 1-50.

Marsh v. Alabama, 326 U.S. 501 (1946)

PR Newire. (2012, September 27). Companies Should Reexamine Their Social Media Policies In Light Of Recent NLRB Decision On Costco, Says Attorney. PR Newswire US.

Rahe, P. (2017). Amending the First Amendment.Academic Questions, 30(3), 293-301.