Your employees do not understand their (lack of) free speech rights

By: Jon Hyman

May 06, 2019

Congress shall make no law … abridging the freedom of speech….

So reads the 1st Amendment of the Constitution.

Take note that it does not say, “You have absolute freedom of speech in all things at all times.” It only prohibits government-imposed restrictions on speech.

Yet, just last week, President Trump tweeted the following:

I am continuing to monitor the censorship of AMERICAN CITIZENS on social media platforms. This is the United States of America — and we have what’s known as FREEDOM OF SPEECH! We are monitoring and watching, closely!!

I promise you that if the President of the United States does not understand how the 1st Amendment works, your employees don’t understand it either.

Indeed, according to one recent survey, only 28% of American workers understand that getting fired because of a social media post does not violate their 1st Amendment free speech rights. Simly and clearly, employees do not have free speech rights at work.

There are four key exceptions to this rule.

    1. Public-sector employees. Government employees are the only employees the 1st Amendment actually protects. Still, their free speech rights are not absolute. The 1st Amendment only protects them as private citizens speaking on matters of public concern, and only then if the employee’s interest in speaking freely outweighs government employer’s interest in efficiently fulfilling its public services. 
    2. Protected concerted activity under the National Labor Relations Act. Section 7 of the National Labor Relations Act protects the right of employees to, between and among themselves, discuss wages, hours, and other terms and conditions of employment. While the Board has attempted to narrow these protections over the past year, their scope is still fairly broad, even extending to obscene pro-union rants and racist picket-line threats.
    3. Protected activity under anti-discrimination laws. If an employee’s speech is in complaint about unlawful discrimination or harassment, various anti-retaliation provisions protect their speech from retaliation. 
    4. Specific state laws that either protect employee speech or other lawful off-duty conduct. Several states have specific laws that protect an employee’s political speech, or, more broadly, speech in general. Even more states protect an employee’s right to engage in lawful off-duty conduct. Ohio has neither. Regardless check your state laws if you intend to regulate your employees’ speech, or otherwise take action against an employee for something that employee has said.

These exceptions not withstanding, your employees need to understand their lack of free speech rights as employees. I make this lesson a key point in my workplace social media training programs. If so many of your employees operate under a misconceived and misunderstood notion of “free speech,” then I believe that it is your responsibility as their employer to educate them. After all, if you are going to hold them accountable for what they say, it’s only fair that they understand their responsibilities and the related consequences.

This post originally appeared on the Ohio Employer's Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at jhyman@meyersroman.com, via telephone at 216-831-0042, on LinkedIn, and on Twitter.