Social Media and The First Amendment

There’s always a question of how much is too much to post on social media. If I post in a crop top will I struggle finding a job? I’m of the legal drinking age so I can post drinking a beer… right? A lot of people think they’re protected under the First Amendment to post whatever they want on social media, but they need to think again.

The First Amendment protects individuals from “interference or constraint” by the government, but offers no protection from private employers. Every employer – and even every social media platform — has their own rules on what they will tolerate as far as offensive, abusive, and inappropriate content. Employers are free to fire anyone who posts content going against the company’s core values. Inappropriate social media content can hurt you before you’re even hired. Hiring managers often look at potential hires’ social media content, and if they see something they don’t like they will eliminate that candidate. In the last 10 years, looking at Social Media before hiring someone has increased by 500%. So if you are looking for a job, you better keep your social media squeaky clean or chances are it’s going to be seen.

Here are some fast facts about the top kinds of content that turn employees off:

  • 46% of employers reported: provocative/inappropriate photographs or information
  • 43% of employers reported: information about a candidate drinking/using drugs
  • 33% of employers reported: discriminatory comments related to race, religion, gender, etc.
  • 31% of employers reported: candidate bad-mouthing previous company

When it comes to posting grievances with their company, employees are only protected under the National Labor Relations Board if they post about a “protected concerted” activity, which relates to a group action or complaint. For example, if they post “I hate this stupid printer,” they are at risk for being fired. However, if they post “We have to get management to do something about this stupid printer,” they are protected. Hm, so start all complaints with “we” instead of “I” and you’re good! But once again, it really comes down to employers’ discretion.

Though government employees do have more rights than those who work for private employers, their rights are not without limits. Shortly after the election in 2012, Deputy Chief Rex Duke posted a picture of a confederate flag on his personal Facebook page with the caption “it’s time for a second revolution.” His page had no indication that he worked for the Police Department, and he deleted the post after 1 hour of being up, but it was too late. He was demoted for offensive content and his pay was cut. Duke disagreed with these notions so he took the Police department to court claiming it was a matter of freedom of speech. The court ruled that the comments could have communicated controversial and prejudicial messages, impeding the ability of the department to perform its duties effectively. Ultimately, the department’s interests outweighed Duke’s interest in speaking and Duke lost the case.

Taking employers out of it all together, people are still not free to post whatever they desire. If the posts are threatening, the user is not protected under the First Amendment. A court case appeared after a man wrote threatening posts about harming his wife, kids, and even referenced an attack on a local school. The man said his posts were inspired by lyrics and weren’t serious. Some courts require the prosecutor to show that the defendant intends to make good on warnings in order to obtain a conviction, while other courts only have to prove that a reasonable person would view the posts as a “serious expression of an intention to inflict bodily injury or take the life of an individual.” Though there are many inconsistencies in situations like these, the man was found guilty.

Another interested situation occurred earlier this year. The Bentonville Police Department requested a search warrant for murder suspect’s Amazon Echo device, saying the device may become central evidence to the investigation. The Echo is always on, recording all conversations that happened in the suspect’s house. However, Amazon fought the Subpoena, saying it would infringe the First Amendment privacy free speech acts. Smart move for Amazon in my opinion. If people knew that at any time, their Echo could be taken and people could listen to everything they’ve said, there would be a huge drop in sales. On the flipside, if you have something as serious as a murder to hide, maybe the police should be able to listen.

Social Media platforms are guilty of being both inconsistent and biased. In the past, Twitter made a public commitment to “let the tweets flow” in an attempt to fight for free speech. However, they recently introduced a “timeout” feature that prevents bullies or offensive posters from posting for a specific amount of time. Facebook’s algorithms are human made, making them inevitably biased.  Sometimes content will be removed from the platforms, other days it will slip through the cracks.

So, what does all this mean? It means that the First Amendment, along with the rest of the Bill of Rights, was created in 1789. A lot has changed since then, so it’s not really applicable to social media. Social media platforms and the law are very inconsistent when it comes to what people are allowed to post and what will get them in trouble. Some courts conclude that employees should be able to post what they want under the protection of the First Amendment, while others say if the company wants to fire the employee, it is their right. While the First Amendment stays consistent, social media platforms are always changing. Should there be a “First Amendment for Social Media” to make the repercussions for inappropriate, offensive, or threatening content more consistent?



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