Many people have been getting fired from their jobs recently due to content they posted on their personal social media accounts. Some of the well-known instances of someone losing a job due to their expressions on social media include:
- Former Guardians of the Galaxy director James Gunn was fired for 2008-2009 era tweets containing offensive messages about race, women, the Holocaust and 9/11.
- Former PR executive Justine Sacco, “jokingly” tweeted about not getting AIDS during a trip to Africa because she was white (she was fired before her plane landed after the tweet went viral).
- A former nurse in Texas was fired for violating HIPAA by posting about a patient with measles in an anti-vaccination group in which she was a member.
There are many other instances of people losing their jobs over social media posts, but does this actually violate their rights to freedom of speech and expression? Let’s unpack some of the First Amendment issues at hand:
Free Speech in a Private Workplace
As the American Bar Association points out, “if this use of economic power to punish speech sounds un-American, remember that the First Amendment limits only the government’s ability to suppress speech.” This means that individuals employed by private companies could be subjected to restrictive social media policies as conditions for their continued employment and possibly fired for posting anything that could hurt the company’s reputation — even if you don’t post anything about the company or people working there at all.
Union members may have greater freedom when it comes to posting whatever they want on social media without fearing retribution from an employer due to union negotiations and contracts prohibiting the termination of an employee for reasons related to social media activity. However, this is not guaranteed and if you’re considered an “at-will” employee, then the First Amendment likely will not protect you if you’re fired as a result of something you posted or even shared on social media.
Free Speech for Public Employees
Since public employees work for the government, most of them are given full First Amendment rights to freedom of speech in the workplace and beyond. As WorkplaceFairness.org explains, public employees can generally not be terminated from their positions unless their speech relates to a matter of “public concern”. But even this is a murky gray area that courts have yet to adequately and thoroughly define.
Watch What You Post on Social Media
To minimize the possibility of losing your job over what you post on social media, there are a few things you should do to lower your risk of retaliation:
- Delete any old posts that could be considered inflammatory or offensive.
- Limit how far back people can view your posts on your social profiles.
- Don’t post anything online that you wouldn’t want to see connected to your name.
- Increase your social media privacy and security settings.
- Review your employer’s social media policy for employees (if one exists).