Earlier this year, Twitter, Facebook, Instagram and several other major social media platforms exercised their rights as privately owned organizations to temporarily or permanently suspend Donald Trump’s accounts as he spread misinformation. These acts brought to light the real ways in which the First Amendment has power, and in ways in which it doesn’t. Free speech is not the absolute right that many misunderstand it to be. In truth, it is limited in several areas, in this case, incitement.
We know that social media companies can currently limit the messages spread on their platforms, but what about other institutions like schools or the company that one works for? Which organizations are permitted under law to limit what their employees or their students post, and does the organization have the right to inflict penalty based on posts shared on social media?
Outside the parameters of a fully executed contract, there is still no clear set of guidelines as to whether or not social media communications can be limited or sanctioned by any specific authority or in any particular manner. Regarding schools, the U.S. Supreme Court has previously stated (Tinker vs. De Moins) that certain speech can be restricted if it occurs on school grounds and proves truly disruptive to the learning atmosphere.
But what about speech that is arguably disruptive to the on-campus experience, but that occurs off-campus through social media platforms? It’s proven extremely difficult, if not impossible, to define “disruptive” wherein social media posts might rise to the level of lawful disallowance by governmental authority.
For example, courts have viewed the ‘Liking’ of a Facebook page as speech that can be protected by the First Amendment. It’s non-disruptive, and you’re speaking as a private citizen about a matter of public concern. However, it gets dicier as you dig.
Whether the institution in question is public or private is a huge factor in debates about Free Speech. Private schools, clubs, companies and employers operate according to their own rules and are able to create communication boundaries that they can enforce, as long as they don’t run afoul of any anti-discrimination law. The First Amendment applies more to public schools and institutions where government subsidies are involved. Therefore, such restrictions would be generated and maintained by state and federal governments.
Courts have most often upheld that when a person posts on Instagram, Facebook, Twitter, LikedIn, etc, they lack an expectation of privacy since social media platforms are public forums. Even if an account is private, someone who follows that person could still share the post with an employer or authority figure and the person posting may be subject to discipline. Unfair? Debatable. But this discipline does not violate one’s First Amendment rights.
Federal laws do prohibit employers from discriminating against prospective or current employees based on information on the employee’s social media accounts relating to protected categories like their race, nationality, gender, age, disability, and immigration or citizen status. However, employers can and do use information on such websites as a method of conducting background checks.
Therefore, it is perfectly legal for private organizations to discipline an employee or student for the messages spread on social media. Just as Twitter can suspend an account for violating its terms of service, a private school or employer can suspend or even fire an individual if the posts prove disruptive. Public organizations are more constrained by First Amendment protections, but even so, it is important to understand that Freedom of Speech does not cover absolutely anything one might say, either on social media or in person.
For more information on Free Speech, check out our last post or reach out to us with any questions.