Free Speech– Collision in Workplace, Social Media: Boundaries of Freedom of Expression…

Free speech is dead in the workplace– but, it’s never really been alive… It’s a common misconception among employees that First Amendment rights of free speech carry over to the private workplace…

The First Amendment of U.S. Constitution applies only to employees of the government in certain situations and all citizens when they are confronted by the government… According to Mark Trapp; freedom to speak ones mind doesn’t really exist in work spaces. You would like to think that your rights are carved in granite, but instead it turns out they’re carved in sand…

The Constitution operates as a restriction on government, not private employers… Employees would do well to keep this in mind before shooting off their mouth at the workplace…

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However, there are valid reasons when an employer would restrict speech– beyond assuring a productive work site or suppressing opinions contrary to management, and among them are, e.g.; fear of lawsuits alleging that an employer permitted a hostile work environment… According to Brian Wassom; in most U.S. states employment is ‘at-will’, and if an employer finds an employee’s speech to run counter to the company’s values and image, there’s nothing preventing them from terminating the employee… In fact, employees should think twice about what they– speak, email, post… during work hours…

In the article Where Free Speech Goes to Die: Workplace by Michael Dolgow writes: In the U.S. people can say pretty much whatever they want… unless they are at work. Simply put, there is no First Amendment right to ‘free speech’ in the workplace… Bosses and those who work under them are ‘not’ equal when it comes to free-speech… Employers have the right to take action against any employee who engages in speech, emails, posts… that company leaders find offensive.

With a few narrow exceptions federal laws only protect a person’s right to expression from government interference, not from restrictions a private employer may impose… In fact, many employers take position that ‘freedom of speech’ is something you do after work, on your own time… Whereas, employers are not similarly restricted in expressing their views in– speech, emails, posts…

In the article Free Speech in the Workplace by Bruce Barry writes: An erosion of free expression in the workplace is weakening the very fabric of civic discourse… There are excessive and needless restrictions on employees… like much regulation that  involves workplace free expression often turn on interpretations of vague and shifting standards, and balancing tests designed to weigh competing interests that are inherently subjective, and the ever-changing stance of a court’s ideological composition at a given time… and since the First Amendment has little application in private settings, the conventional wisdom and accepted managerial practice gives business the ability to shut down speech that in their option is on the margins… 

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Hence, employers can then argue– that the ‘speech or expression’ is not related to the business; so do it on your own time… Of course employers need not tolerate abusive or harsh or insulting speech, but the problem is that often employment lawyers advise business to go– too far in restricting speech, in order to avoid risk of lawsuits. Hence they restrict any speech that could be construed as– harassment, hostile, racial… potentially this creates collisions between laws that seek to avoid hostile environments and free speech… It’s a tough balance and some argue that on advice of lawyers many employers tolerate– too little freedom of speech…

In the article Social Media Free Speech Rights For Workers by Kirsti Marohn writes: Do employees have the right of free speech to publicly criticize their– organization, boss, workplace… especially when venting on social media age has replaced traditional complaining around the water cooler? Experts say it’s a complex and gray area of the law. There are protections in the law for employees to speak out on matters of public concern or the conditions of the workplace, but they are not absolute… In wake of constantly changing technology and federal regulations, many organizations are scrambling to write or rewrite their social media policies…

According to Dorraine Larison; the question of employee rights and social media is a hot topic, and employers should have a policy that governs how employees use social media in their workplace… the policy should be specific enough to protect the employer and employees from any potential litigation, but also general enough to allow open and productive communication… It’s a good idea for employers to advise employees to refrain from sending, posting information, comments that they would not want their– bosses, or other employees, customers, partners, stakeholders… to see on social media or elsewhere…

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In the article Free Speech and Social Media by Sara Hawkins writes: You heard it said, and you have probably read it– someone saying; they can say whatever they want, or post whatever they want, or email whatever they want… and no-one can do anything about it… As if the First Amendment is their sword and shield… The three words, ‘freedom of speechgets thrown around and written about so often that its meaning is more about misinformation than truth…

The First Amendment to U.S. Constitution is very specific and says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and petition Government for a redress of grievances…

Also in 1996, in the landmark case ‘Reno v. ACLU’, a unanimous Supreme Court specifically extended the First Amendment to include; written, visual, and spoken expression posted on the Internet… Of course, the First Amendment doesn’t give the right to say– whatever you want, or whenever you want, or to whomever you want– but,  that doesn’t stop people from thinking otherwise…

In addition, in this era of digital technology, speech is more than written or spoken words, it includes; different types of expression, visual interpretations, as well as; artistic forms of speech… Also, it covers– symbolic speech and symbols that have meaning (e.g.; swastika or peace sign)  is covered by what is often refer to as freedom of speech. It’s nearly impossible to create a list of what types of speech are protected because there are many caveats… and of course, ‘free speech’ does not mean ‘free’ to say whatever comes to mind…

In the article Free Speech at Work by Heather Bussing writes: You know you can probably get fired for telling your boss to their face– ‘go to hell’… since free speech only applies when the government is trying to restrict it, but even then it’s not absolute… Hence, employers are generally free to restrict employee speech at least while in the workplace… However, some restrictions on speech are required by other laws, e.g.; laws prohibiting discrimination, sexual harassment, laws protecting confidential medical and financial information prohibit employees from saying all sorts of things at work…

Most workplaces openly endorse the concept of free speech, but often the rhetoric is not consistent in practice… Research suggests that although there may be much talk about free speech in the workplace, the talk does not matched the reality… Business must place a greater value on employees, and create a more open workplace environment that encourages all employees to freely express themselves… Free speech is very messy and sometimes violent– free speech to one person may not be acceptable to another person– and the motto; ‘free speech for me but not for thee’…

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Free speech is hated by the powerful and the powerless, and those who would suppress what is said in order to retain power, and those who would change what is said in order to alter the relations of power… Most employers allow free speech, but it’s important to realize that it’s a privilege that they can revoke at any time (each workplace, either; stated or implied have rules of what they consider to be– free or not free)…

According to Deborah Marcuse; commitment to free speech is very important in the workplace, but there is a delicate and important balance that comes into play when the rights of one individual may impinge on rights of other individuals…

Hence seeking balance– where reasonable people can freely engage in discussion and share– ideas, concepts, opinions… without hurting each other, or the business…