Almost every week now, a celebrity or sports figure makes the news by making a controversial statement with varying levels of consequences. Inevitably, those consequences are met with a chorus of boos from Americans who declare the death of “Freedom of Speech” and bemoan the injustice against our famous friends for simply giving their seemingly constitutionally-protected opinions. Recent months have seen Paula Deen fail to have her contract renewed by The Food Network due to some controversial racially-charged statements, and some guy that apparently has something to do with ducks have his employment effected for making statements adverse to homosexuals.
These are just two of the more prominent examples of a “celebrity” suffering what we in the legal field call an “adverse employment action” based on a statement they have made. In each of these instances, at some point, someone asks the question: “I thought we had freedom of speech?”
The simple answer is, yes, we do. The First Amendment to the Constitution of the United States reads as follows: “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 the people peaceably to assemble, and to petition the Government for a redress of grievances.”(U.S. Const. amend. I). Translated, this means that as Americans, we are afforded a certain level of protection when it comes to our speech. However, what many people fail to understand is that the First Amendment only protects our speech from government intervention. The freedom of speech that we enjoy is not a license to say whatever is on our mind, regardless of whom it may offend, and it certainly does not protect us in most instances from our employer taking an adverse employment action (firing or punishing us) if it feels that statement is a poor reflection upon its brand. Most often, this confusion seems to come up in the context of employment. With social media coming to prominence in recent years, more and more Americans seem to be forming the opinion that they have carte blanche to say or post whatever comes to mind without regard to any potential consequences.
Particularly, many people of are of the mistaken belief that their Constitutional protection of free speech extends to their employment. This can be a costly mistake. Unless a person is employed by a government agency, there is a good chance that they enjoy absolutely no “freedom of speech” in their employment setting. Most states are what we call “at-will” employment states, which means with some exceptions and absent an employment contract, your employer does not have to employ you, and you do not have to work for your employer. In fact, an employer in an at-will employment state can basically terminate you for ANY reason, so long as they do not discriminate based upon a “protected class” (generally race, color, religion, sex, national origin, disability, or age). Posts on Facebook or Twitter about the company, or even opinions unrelated to the workplace can result in an adverse employment action if the company so chooses. Typically, most employers do not fire people for just any old reason. That would be bad for business. However, if something an employee does or says goes against the best interest of the company, it could very well end in an adverse employment action. Ask Paula Deen or the duck guy.
Often, this subject leads to the question of whether we have become too “politically correct” as a society, or whether people are just too damn sensitive these days. Also, it seems like this usually involves a celebrity whose opinions or statements have benefitted the employer in the past, since controversial stars most often generate the highest ratings or publicity.Make no mistake, though. When this situation comes up in the media, it usually has very little to do with sensitivity or political-correctness. Generally, it means it has been decided that the bottom-line could be negatively affected by continued association with the employee due to the statement or action.
What does this mean to all of us “ordinary” people? In short, watch what you say. Mind your social media content and/or keep your associations on social media private and limited to those that share or “get” your sense of humor or opinions. Understand that in the employment setting, there is very little freedom of expression. Adjust the settings to your social media accounts so that you have control over who sees the content. Make sure that any photos that you have publicly visible properly reflect your professional brand. Current and potential employers do look at these things. It is almost protocol these days for human resource professionals to check a candidate’s social media usage before even scheduling an initial interview. Keep in mind that while we have an ideology of “Freedom of Speech” here in America, the legal protections and practical implications of that concept are very limited in the employment setting.
2-15-1977 to 5-18-2014-
John Mazi is an attorney, educator and motivator from Akron, Ohio. He graduated Cum Laude from Kent State University in 1999 with a Bachelor of Arts degree in Criminal Justice. He then went on to study law at the University of Akron School of Law, graduating in 2003 with a Juris Doctor degree. He took and passed the Ohio Bar Exam later that year and is currently licensed to practice law in the state courts of Ohio, as well in the Federal Court in the Northern District of Ohio.
For several years John practiced law exclusively, focusing on the areas of real estate, civil litigation, juvenile law, and business law. He is currently the Legal Studies Program Director at Miami-Jacobs Career College in Independence, Ohio, and practices law as a solo practitioner. Because of his passion for law and personal development, he has been teaching legal, criminal justice, and career/success courses at Miami-Jacobs Career College campuses in Cleveland and Akron with the constant goal of motivating others to reach their potential.