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Blog Note: Another public sector employee has been fired for posting disparaging remarks about their employer. Is it a freedom of speech vs. employee conduct issue?

Read the article here: http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20110224/NE...

Good or bad; the explosion of the use of social media for its velocity and reach comes with some unintended consequences.
The same velocity and reach that will get the word out for a charitable event, fundraiser for a sick friend or a missing person will also be used to send venom, rumors, allegations and lies.
Social media is both a blessing and a curse that has caused a great “freedom of speech” debate.
Our freedom of speech is protected by the First Amendment in the Bill of Rights. “Speech” has been broadened to mean “expression”, in that the freedom can be verbal or non-verbal.
The First Amendment to the U.S. Constitution states that “Congress shall make no law…abridging the freedom of speech”.
As I understand it as applied to social media, Congress could not enact a law prohibiting the creation of a social website that falls within the intent of the First Amendment and does not promote any of the exceptions to the amendment which are: defamation, causing panic, fighting words, incitement to crime, sedition or obscenity.
I believe that website “Terms of Service” buttresses their user policies against the exceptions to free speech, so that they are somewhat indemnified from charges that might be brought against a user of their website who engage in any of the exceptions to the First Amendment.
So, in my mind, someone who is fired by their employer because of something that they posted on a website is NOT protected by the First Amendment, because Congress has no interests in the website beyond the website’s right to exist and as long as the website doesn’t promote any of the exceptions to the First Amendment.
When a website removes a user for making a personal attack on another; be it another member, non-member or organization, I don’t believe that they are violating the user’s freedom of speech. They are invoking the website’s “Terms of Service”.
In much the same way a private business has the right to refuse service to anyone, a website that is privately held can fashion very liberal or very strict guidelines for membership and for the use of the website.
That is not to say that there may be moral or ethical arguments, but moral/ethical considerations are not identified in the First Amendment.
In that regard, it raises philosophical issues with freedom of expression and it is my understanding that the English philosopher John Stuart Mill, in his book “On Liberty”, provides the more accepted test for government intervention of civil liberties that is known as the “harm principle”.
It states: “…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant”.
It should be noted that, according to Professor Julie Van Camp, most of the “classic” exceptions to freedom of expression, as established by the U.S. Supreme Court, are consistent with Mill’s harm principle, with the exception of obscenity.
So, that same website user decides to use the website as a very public platform to disparage or embarrass their employer; the employer sees it and terminates the employee.
Did the employer violate the employee’s freedom of speech, according to the language in the First Amendment?
Some may like to think so, but if the employee was not suppressed from posting it on the website, thereby freely expressing their opinion on the website, then how was their freedom of speech suppressed, according to the First Amendment?
In my opinion, the opinion expressed by the employee might be somewhat unpleasant and even contain some fact, but the employer isn’t terminating the employee for saying it, but because it was said publicly and consequently, violated the company’s code of conduct. Most employees sign a statement when they are hired that says that they agree to follow all of the rules and that they will do nothing to bring embarrassment to their employer.
Many will remember the firefighter/paramedic that was fired over the YouTube video that was posted on Facebook (http://www.live5news.com/Global/story.asp?S=12047151).
His employer stated that he was terminated for: “You displayed poor judgment in producing a derogatory video depicting a member of this department with a physician which is implied to be at Colleton Medical Center…This video has created an embarrassing situation for this department, our public image and the cooperative relationship we enjoy with Colleton Medical Center. It reflects poorly on you and Colleton County”.
“Poor judgment” is not protected under the First Amendment.
But, this isn’t the only example of an employee being fired over a social website posting.
Here is just a sampling of examples of employees being fired over a social website posting:
http://www.inc.com/news/articles/2010/05/waitress-fired-for-faceboo...
http://sports/espn.go.com/nfl/news/story?id=3965039
http://www.maximumpc.com/article/news/bored_teenage_worker_fired_ov...
http://www.jsonline.com/blogs/news/95125549.html
Then, there is the story about an anonymous commenter who will be charged with defamation, once their identity is discovered. Let’s face it; it may no longer be “safe” to hide behind a user name and computer screen and violate someone else’s rights (http://qconline.com/archives/qco/display.php?id=495908&query=Ne...).
According to the news article, the Third District Appellate Court in Ottawa, IL ruled that The Times newspaper in Ottawa must turn over information that could identify a person who posted alleged defamatory comments on the newspaper’s website.
According to Appellate Justices Holdridge and McDade: “…type of anonymous speech are protected by the Constitution, but the Maxons showed grounds for defamation that took away the defendant’s Constitutional right to make anonymous web comments”.
They also went on to say in their ruling that: “the alleged defamatory comments were not presented as opinions, which would protect the commenter from a lawsuit, but as fact”.
Now; there were some who felt that the anonymous commenter should be protected.
Why?
While you ponder that question, we should also be thinking about our own posting “habits”.
We may want to get a better idea of what is stated as fact and what is stated as opinion.

It is my opinion that we have become a nation who has lost its civility and respect for each other. We want to blame someone else or something else when things don’t go our way. We don’t want to be held accountable, because that would mean admitting that we were wrong. We believe that if we say something to the face of our employer, we will surely be fired, but somehow believe that posting those same comments on a social website is “different”. Yes; it is. Instead of keeping a disagreement between you and your employer private, you have decided to “share” it with 500 million members of Facebook; you know, your “support” network. And besides; that’s “private” because it has nothing to do with work. What?

“Like” if you agree!

Oh; and don't forget. If you're REALLY in a hurry to screw things up, you can always go to Twitter, where you can do it in 140 characters or less!
TCSS.
The source for part of this article was “Freedom of Expression: The First Amendment” by Professor Julie Van Camp.

The opinions and views expressed are those of the article’s author, Art Goodrich, who also writes as ChiefReason. They do not reflect the opinions and views of fireengineering.com, Fire Engineering Magazine, PennWell Corporation or his dog, Chopper. All articles by the author are protected by federal copyright and cannot be reproduced in any form without expressed permission.

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Comment by Mike France on March 2, 2011 at 12:51pm
Trust me i have enough to do here , i don't have the time to do this .I believe it is such a gray area and there are to many changes on a day today to basis
Comment by Art "Chief Reason" Goodrich on March 2, 2011 at 12:28pm

Mike:

If you are on their "friend's list", then you will see everything they post.

You won't have to go looking for it.

Comment by Mike France on March 2, 2011 at 9:47am

It's ironic , i just sat thru a 3 hr class devoted to this subject recently and our Board recently adopted a Policy regarding Social Media . Which left me in the Middle to enforce it , It's a basic policy that states '' members may belong to any of the Social Media's that are out there, but must refrain from using the Departments name or members names in their postings. '' Members must have permission from the Chief and the Board to post picture's of Department Fires and or Video of said Fires before posting.

And of Course I now have to be the Social Police.

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