What happened to the First Amendment?
A Kern County court commissioner was recently censured for his anti-Muslim, anti-immigration, and anti-gay marriage Facebook posts, according to an article in The Bakersfield Californian.
In a letter to the editor (“What happened to the First Amendment?”) in response to the article, the writer stated that he was angered by it and that the court commissioner was simply exercising “his First Amendment rights to express his views on social media.” Furthermore, the court commissioner “resigned his position as a result of his ‘violation’ of his First Amendment rights.”
This situation presents an excellent opportunity to discuss the protection that the First Amendment provides and how it affects the employer/employee relationship.
Among other things, the First Amendment prevents the government from making any law that prohibits our freedom of speech. Therefore, the protection that the First Amendment provides us is from our government, not from our employers.
Of course, there are some exceptions to that rule. For example, it is illegal for us to make false statements that damage a person’s reputation, threaten others, or say things to incite violence.
The First Amendment does not prevent employers from restricting the speech of their employees – at work or away from it – and, numerous employers have legally fired employees for comments they posted on Facebook and other social media that the employers disapproved of.
For example, Juli Briskman lost her job as a marketing analyst at Akima LLC last October, days after she was photographed flipping off President Trump’s motorcade as it passed by while she rode her bike. The photo went viral, but didn’t identify Briskman as the bike rider. However, she posted the photo on her Twitter and Facebook pages and was subsequently fired for violating the company’s social media policy. She then sued for unlawful termination.
In June, the company’s attorney argued that private employers don’t have to abide by free speech provisions of the Constitution and that “the company found out about a rude and profane act and…decided it wasn’t interested in continuing with that particular person.” The judge agreed and dismissed the wrongful termination count, according to an article in the American Bar Association Journal.
In addition to courts, the National Labor Relations Board often rules on terminations based on social media postings. This independent federal agency enforces the National Labor Relations Act (which protects the rights of employees to discuss the terms and conditions of their workplace) and has ruled in favor of employers who terminated employees for their social media postings outside of that scope.
For example, the Board ruled in favor of an employer who fired a BMW salesman for photos and comments he posted of an embarrassing accident at a nearby Land Rover dealership, also owned by the employer. Because his photos and comments were not about his working conditions, his speech was not protected.
However, the Board has consistently ruled against employers who fired employees for posting discussions about work and for having overly broad social media policies. Check out https://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media for more information about the NLRB’s social media guidelines.
California employees are protected from being fired (and other adverse actions) when they engage in lawful conduct away from work during off-duty time, except when it creates a conflict of interest for their employer. This normally occurs when an individual’s personal interests are at odds with the professional interests they owe to those who employ them.
For example, if I posted that most bosses are stupid and deserve to be sued, it could financially hurt the organization that employs me - a human resources outsourcing company whose customers are employers. My personal interest in expressing my opinion would conflict with the professional interest I owe my employer to generate revenue.
That’s essentially what the Kern County court commissioner did with his anti-Muslim, anti-immigration, and anti-gay marriage posts.
According to TBC, “The commission said in its decision that (the former court commissioner) violated multiple judicial canons by, among other things, failing to uphold the integrity and independence of the judiciary, failing to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and failing to avoid impropriety and the appearance of impropriety.”
If your job is to be fair and impartial, you have to appear to be fair and impartial, even on your Facebook page.
The First Amendment protects us from the government, not our employer. But what happens, like in the court commissioner’s case, when your employer is the government? According to an article on constitutioncenter.org, the speech of government employees can be restricted when it is incompatible with their status as a public official, i.e. when it creates a conflict of interest.
The First Amendment does not give us the right to say whatever we want to without consequences. The court commissioner learned that the hard way.