Does Freedom of Speech Belong in Social Media Policy?
Two things from this week’s reading that immediately got my attention:
1) “According to the National Labor Relations Board, most social media policies in the US are unlawful.”
2) KTBS fires news anchor for responding to viewer defending her African American hair on social media.
My first thought…
My second thought…
Surely the KTBS policy (or lack thereof) is one of those appallingly frequent social media policies that are unlawful according to the National Labor Relations Board. Surely defending your ethnic/racial heritage is protected but… most social media policies are unlawful because the policy’s language is too broad.
Having a policy with language that is too broad is a problem because sweeping language could be misconstrued to interfere with the kinds of activity protected by federal labor law (i.e. unionization, discussion of wages or working conditions among employees, etc.). Meaning it really has nothing to do with Freedom of Speech.
Lessons Learned about writing social media policy…
When writing policies, be sure to be vague enough to make sure the policy covers enough ground, but not too vague as to unintentionally run a fowl of certain legal issues. A more extensive run-down of some of the legal issues to be wary of when writing policies can be found at:
One highlight from the above article worth mentioning here – the monitoring of employees. Too much monitoring/control of employee social media behavior could lead to the company or organization being held liable (argument: you had control, you are responsible). On the other hand, organizations/companies can’t use a lack of a social media policy or control over their employee’s social media interactions to claim no fault when it comes to things like harassment and whistle blowing. So again the lesson here seems to be a carefully worded policy that strikes a balance between two extremes.
Lessons learned about freedom of speech…
Is the lesson here that people have the right to freedom of speech, and employers have the right to fire them for it unless the speech is otherwise protected (i.e. under labor laws). After all, the First Amendment alludes to Congress not abridging freedom of speech, it says nothing about employers.
In the absence of constitutionally recognized legal protections, what is to prevent employers from what might seem to some, unjust firings (see KTGB example above). I think the answer can be found in this week’s readings in the article about Rule 40 (the prohibition placed on Olympic athletes by the Olympic Organizing Committee preventing athletes from using social media to promote certain brands). Basically the pertinent argument the article puts forth here is: whether or not Rule 40 was legal or illegal, it left a bad taste in everyone’s mouth because people don’t like to see what they view as inalienable rights taken away from them, whether it is taken away from them by government or another organization.
To put it another way, the Olympic Organizing Committee, “protected themselves in the court of law and lost in the court of public opinion.”
Questions for the class…
1) Besides speech protected by labor laws, should other types of speech be protected, not just from government interference, but from interference by employers as well?
Example: KTGB (see above)
Example: Politics (employee tweets or posts about supporting a political candidate)
Example: Religion (employee tweets or posts about religious affiliation)
Example: Sexual orientation (employee tweets or writes blog post about what its like to be gay and whatever their job title is’ working for company ‘x’)
Example: any other types of speech you can think of that employers should keep their hands off of
Example: try inserting Olympic athlete/Olympic committee, student/school, etc. or other dynamic relationship (those making the policy/those on receiving end of policy) besides generic employer/employee in the above examples to see if it makes a difference.
Example: try also thinking about whether the employee uses personal account or company account, and whether employee is a public figure whose identity is inseparable from the company/organization regardless of what account they use.
2) Should these be legal protections, or should the right to certain types of speech be protected from employers in the court of public opinion ONLY, or is it just good social media policy to write in certain freedom of speech protections into the policy itself?
3) Firing someone is the extreme example of free speech restrictions, is Harvard’s policy that gives them the right to delete/take down any posts any better/ the right way to go (i.e. you have freedom of speech, but the policy gives us the right to censor you).