Free Speech and Social Media: What Are Your Rights?

Social media has revolutionized communication in ways previously unimagined. It has also made the expression of ideas more perilous than ever. Provocative posts with the wrong intent have resulted in school suspensions, workplace firings, even arrests.

"What about freedom of speech?" some might say. "Where are my Constitutional rights when it comes to social media?"

Let's talk about free speech and social media.

First, what does freedom of speech really mean?

Freedom of speech (in the USA) is a First Amendment right granted by the Constitution. It means that the government cannot penalize individuals for their written or verbal speech. But that freedom comes with limits. Freedom of speech does not equate to freedom from consequences.

The government

The government cannot penalize a person for expressing either disdain or enthusiasm for certain political figures, but it can pursue or even prosecute an individual for threatening harm. No one has the right to use their freedom of speech to commit or threaten to commit a crime.

Students have been arrested for posting threats to commit a shooting attack on their schools on social media. The students in this example did not have freedom of speech because they were misusing their freedoms to infringe on the well being of non-governmental figures.

Social media companies

This may be a hard pill to swallow for some, but the truth remains that social media companies—as with nearly all private entities—are not bound by 1st Amendment restrictions. Private businesses have no legal obligation to protect or even respect any individual citizens' right to free speech. The fact that they do is often just a consequence of their bottom line, that is to say you'd be far less likely to use their platform if they did not allow you to speak your mind openly.

When it comes to what you can and cannot post on each social media platform, they make the rules. If you don’t abide by their community rules, no matter how strict (or not) they may be, you could be reprimanded, restricted, or even kicked out with no explanation and no legal recourse.

If Facebook wanted to permanently ban all users who post negatively about Mark Zuckerberg, the action would be within the company’s legal rights, and it would not be considered an infringement on freedom of speech.

In the spring of 2018, Twitter chose to ban all cryptocurrency ads. This was neither inappropriate nor illegal, as this does not infringe on anyone’s freedom of speech because Twitter is a private business. Did it have real-life ramifications on these businesses' profitability? Probably. Do they have any power to claim loss of business? Absolutely not.

Employees and employers

Countless employees have been fired for social media posts and that number is only growing. Of course, there are many examples of people who published posts that were reprehensible. It's a no-brainer, for example, that an employee would be fired for posting about their plans to assault another coworker. But there have been plenty of employees fired for posts that were more benign (in the sense of being non-criminal but in most instances still offensive).

A newspaper editor from Vermont was fired for a series of derisory tweets regarding a third gender option potentially being added to licenses in his state. Under the First Amendment, the editor has the right to express his opinions, and, regardless of how offensive they may be considered to some, the government could never prosecute him for his posts. Nevertheless, the newspaper he worked for was not the government, and getting fired is not the same as being arrested. Since Vermont is an at-will state, which means employees can be fired for any reason as long as the reason does not discriminate against a legally protected class, his employers were completely within their purview to fire him.

To put it simply: A business can’t fire someone for being white, but a business can fire someone for expressing white supremacist views.

The newspaper fired him because his posts were in violation of the company’s social media policies. As a private entity, the company has no obligation to protect First Amendment rights in its social media policies. The policies were written in such a way as to protect the company from legal issues and negative publicity. Since the editor broke the policies, he was legally fired.

What are your rights?

According to the First Amendment, you have the right to say or publish anything you desire. However, you do not have the right to threaten or endanger others through your speech, whether written or verbal, and businesses don’t have any legal obligation to protect your opinions from their consequences.

Freedom of speech does not apply to social media because social media is owned and operated by private businesses. The proprietor of a social media platform has the legal right to determine what can and cannot be said on the platform.

The government is the only entity that must respect freedom of speech. Schools and businesses are legally allowed to penalize an individual for social media posts.

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While some may see social media as restricting freedom of speech, it also enhances freedoms when it comes to getting a job. Some business use social media to conduct background checks that give a more accurate snapshot of the current individual, an opportunity for job-seekers to set themselves apart. These background checks also have been proven to even the playing field as other conventional methods are statistically more likely to disparage minorities in favor of other candidates.

To learn more about how social media screening enhances workplace equality and fairness efforts, click here.