Freedom of speech is one of our rights in the United States, and it is guaranteed by the First Amendment. So it is hard to believe that something like social media that a majority of us use every day, could be the exception to the rule that we can say what we want to say without fear of backlash. In general, there are exceptions that prevent hate speech, defamation, and threats. Some of these aren’t legal, just frowned upon by the society at large, while others can get someone in trouble. Social media sites allow for the spread of all types of speech, from spoken word pieces on sites like YouTube, to shorter phrases said in 140 characters on Twitter. The publication of negative speech has some positive and negative consequences. We’ve seen them play out in the last few years with events in Ferguson, the Occupy Wall Street movement, and every major election.
It is difficult, however, to choose which pieces of speech are worthy of protection from action and which can be used against someone in legal proceedings. Not everything said on social media can be taken at face value. What one person deems as offensive and disturbing may incite a different emotion in another person. Striking a balance between unfiltered free speech, political correctness, and censorship is difficult. Censoring what is allowed on social media may seem like it goes against our Constitutional Rights, but allowing a free-for-all on speech can lead to threats, bullying, and hate speech.
Social Media’s Impact
Speech is not, nor has it ever been, a completely good vs. evil situation. There is so much more behind a string of text than just the literal meaning of the words. This is what makes it so difficult to decide who and what has a right to be on social media sites like Twitter, Facebook, and Tumblr. Some countries, like North Korea, Iran, China, Pakistan, and Turkey, have completely blocked their citizens’ access to social media sites as a way to ward off the problem. They operate under the theory that if you take away the cause, you won’t have to worry about it.
Many websites and apps do have “report” features so that a user can alert the webmasters that something has gone wrong. This begs the question, if someone says something terrible on social media, and it is reported but nothing happens, who is responsible for the fall out? It’s an increasingly important topic across the world; this isn’t just limited to the United States.
City of Ontario, California, et al v. Quon, et al
In 2009, the Supreme Court of California heard a case that discussed the rights to free speech in text messaging between employees. Employees of the City of Ontario, California filed a claim in district court against the police department, city, chief of police, and an internal affairs officer. They believed that their Fourth Amendment rights were violated when their text messages on city-issued pagers were reviewed. The city did not have a text-messaging policy; however, it did have a general “Computer Usage, Internet, and E-mail” policy. Those employees felt as if that particular section did not cover their pagers. The court held that the city employees had a right to privacy in their text messages because there was no specific language about text messaging in the city’s policy.
This, along with several other cases about Cloud privacy has prompted many to ask the question: are Supreme Court justices too out of the loop to fully understand the severity of the problem? Most–though admittedly not all–Justices don’t interact with social media to a great extent. Perhaps one or two may have a Twitter account, but those are often controlled by members of their team. President Obama, who is largely considered more modern with technology, is the first sitting President to have a Twitter account, but there are questions about just who actually runs it.
Anthony Elonis v. United States
This case concerns a Pennsylvania man, Anthony Elonis, and his post of violence-filled rap lyrics aimed toward his ex-wife. He didn’t use his own name, but rather the pseudonym Tone Dougie. His rap suggested that he should use his wife’s “head on a stick” in his Halloween costume. He used images that haunt the public mind, saying that he was going to terrorize a school as “Hell hath no fury like a crazy man in a kindergarten class.” Some of the other lyrics were extremely troubling:
There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut.
He also rapped about killing federal agents. Tara Elonis, his ex-wife, felt threatened by the song. The court had to judge “whether the threatening speaker intended to harm anyone or whether the listener was genuinely afraid of being harmed.” Nancy Leong pointed out in the Huffington Post that, “because the Internet filters out voice and demeanor cues, online statements provide less information about the seriousness of the statement, and are thus more likely to be reasonably interpreted as threats.“
Elonis didn’t seem to be too upset at first, posting on Facebook: “Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt … I also found out it’s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be the cornfield behind it …”
The case is ongoing and it has incited intense emotions from both sides of the fence.
What are the benefits of having freedom of expression on social media? Surely, it is a way for some people to vent their anger without feeling self-conscious, nervous, or upset without resorting to violent actions. Everyone has a right to say what they think. We’ll never know, thankfully, if Elonis would have followed through on the threats in his rap.
Retweets, liking, or even posting your own status can be as effective as screaming at the top of your lungs at a protest. Lately, Facebook has been full of posts that educated everyone on topics relating to racism and the plight of African Americans in modern day America. There are always a few feminist pieces floating around. LGBTQ statuses, articles, and debate appear often, as well. Looking into the comments of these pieces, it is easy to see a cross section of what people believe about the topic. After all, the best way to argue for something is to know why people are arguing against it.
Social media has also become a home to those people who post positive things about topics from body-positive Instagram campaigns to equal media representation groups on Tumblr.
To quote Uncle Ben from Spiderman: With great power, comes great responsibility. Unfortunately, many people do not understand their responsibility to fellow man. People who don’t believe in the status quo (or those who believe in the previous status quo that is now shifting to another) can stir up some pretty harsh feelings. People have the right to believe whatever they want, but these more extreme views on politics, racism, sexism, and homosexuality can start verbal sparring matches that help no one.
People have been using social media to post threats that haven’t been taken seriously for years. Stricter online controls would help alert the authorities in some cases, and even protect the innocent. Social media can be used for internet bullying, which in some cases is worse than the traditional verbal bullying. Online gossiping and social media platforms allow the bullying to continually exist–a problem for both the bully and the bullied.
Social media is one of the best inventions of the last century. It allows us to stay in contact with people we would have left behind, and it allows us to preserve our memories in a time capsule. However, it can also make or break a person depending on how someone reacts. Truthfully, the problem isn’t a freedom of speech issue, but rather one of morality. Can we take morals and apply them to the virtual world?
Supreme Court: City of Ontario, California, et al v. Quon et al
Constitution: First Amendment
Constitution: Fourth Amendment
Slate: Are Facebook Threats Real?
Huffington Post: Constitutional Rights in the Digital Age
The New York Times: Do Online Death Threats Count as Free Speech?
Salon: The Supreme Court’s baffling tech illiteracy is becoming a problem
Business Insider: This Guy’s Facebook Rants Put Him In Prison, And The Supreme Court Will Hear His Case Today
Truth Out: This Time, “Free Speech” Cannot Prevail
ABA: United States v. Anthony Elonis – Third Circuit
Index on Censorship: 10 Countries that have Social Media Banned
The New York Times: Chief Justice Samples Eminem in Online Threats Case
First Amendment Center: Social Networking
Bloomberg: The 8 Most Important Cases in the New Supreme Court Term
Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.
There is no constitutional right to free speech in the workplace.
"As a general rule, the First Amendment doesn't apply to the private workplace," said Daniel Schwartz, employment law partner at Shipman & Goodwin. Instead, the First Amendment prevents government, but not companies or individuals, from limiting free speech.
You can say whatever you want in a private workplace, Schwartz said, but you should "assume your employermight have something to say about it."
But some forms of employee speech are protected by the nation's labor laws.
"Employees have the right to talk about their wages, hours and working conditions," said Heather Bussing, a California labor attorney.
The difference will likely be at the center of the controversy swirling around a diversity memo written by a now ex-Google employee.
Software engineer James Damore posted a 3,300-word criticism of Google's diversity policies on the company's internal website. In it, he said he valued diversity and inclusion, but argued that the biological differences between men and women "may explain why we don't see equal representation of women in tech and leadership."
Related: Google's open culture tested by engineer's anti-diversity memo
Damore confirmed to some other news outlets on Monday that he had been fired as a result of the memo.
Google(GOOG) has yet to confirm his firing, although a source confirms he is no longer an employee. But CEO Sundar Pichai said in a response sent to Google employees, that while "we strongly support the right of Googlers to express themselves ... to suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK."
Pichai said that sections of the memo violate the company's Code of Conduct, which requires "each Googler to do their utmost to create a workplace culture that is free of harassment, intimidation, bias and unlawful discrimination."
Related: Silicon Valley spars over Googler's essay
Bussing said that parts of the memo, like his criticism of the company's diversity program,could be considered a discussion about working conditions that is protected by law.But other parts could be considered offensive by Damore's co-workers, and Google had a right to take action.
"Google says it has a line, and that this [memo] crossed it," she said.
Damore told the New York Times that "I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does."
The memo could also be a different form of protected employee speech that labor law calls "concerted activities." Typically that's speech by employees who are seeking to form a union. But any kind of "call to action" directed at other employees could also fall into this category, said Eric Meyer, a labor law partner Dilworth Paxson who runs the blog The Employer Handbook.
"It's possible he may have a claim," said Meyer.
But a company can fire an employee for violating policy even if his or her speech is protected, Meyer said.
Employers can have a policy to create whatever culture they want inside the business, and to get rid of employees who do not fit in that environment, as long as that policy does not discriminate against a class of people based on characteristics such as gender, age or race, according experts.
"Companies have a right to manage their workplaces as they want," said Schwartz. "they can prefer one point of view over another If they want."
CNNMoney (New York) First published August 8, 2017: 4:43 PM ET