The rise of social media has dramatically changed the way most of us communicate. These changes have affected free speech regarding what is protected under the law and what isn’t. This can become especially tricky when it comes to businesses and their employees. The following information discusses what types of speech is protected on social media and what is not.
What Is Protected?
Many companies have social media policies that urge employees not to discuss company matters online or talk about managers or co-workers in a negative light. Many of these policies are murky, and some may even be illegal. According to the
Institute for Public Relations, the National Labor Relations Board has been involved in striking down workplace social media policies that prohibit employees from discussing topics such as wages, unions and management issues. In general, speech is also protected if it involves a public concern.
What’s Not Protected?
In short, anything that would be defined as threats, harassment or obvious insubordination is not protected. Deciding when an employee has gone from simply airing workplace complaints to crossing a line that involves illegal speech is not always easy to determine. A lot of laws regarding stalking and harassment were written before many aspects of our lives moved online. The courts are now starting to catch up, and there are a few recent cases that may affect what’s no longer protected as free speech online.
In the case of Ames v. Ohio Department of Rehabilitation & Correction, an employee posted statements on Facebook regarding shooting other employees. The employee was eventually terminated. In the case of the
Richmond District Neighborhood Center, an after school teen center in San Francisco, declined to send rehire letters to two employees based on their Facebook conversations. The conversations referred to specific acts of insubordination. While these two cases have proven there are times when speech on social media crosses the line and is no longer protected, employers need to carefully evaluate each specific situation and even seek out legal advice before taking action.