Free Speech, At-Will Employment, and the Double-Edged Sword of Social Media
Recently, a young woman named Lindsey Stone sparked a nationwide debate over free speech and appropriate use of social media. In November of this year, Ms. Stone posted to her Facebook account a picture of herself raising her middle finger and pretending to yell at a sign posted near the Tomb of the Unknown Soldier in Arlington National Cemetery that states “Silence and Respect.” The photograph soon went viral and national media outlets picked up the story and covered the resulting debate concerning the two women. Ms. Stone and a co-worker, Jamie Schuh, were suspended and subsequently fired by their employer, Living Independently Forever, Inc., over the photograph.
Part of the controversy surrounding the photograph of Ms. Stone concerns her Constitutional right to free speech she exercised in taking and posting the photograph online. The First Amendment to the United States Constitution guarantees the freedom of speech, but the Court has recognized limitations to this right such as defamation or obscenity. Though public employers such as governmental agencies are generally not allowed to terminate employees for exercising their First Amendment right to free speech, private employers like Living Independently Forever, Inc. are usually not required to extend the same protection to their employees.
Many American workers are “at-will” employees, meaning that either the worker or the employer is free to end the working relationship whenever they choose without having to state a reason for the termination. In Ms. Schuh’s and Ms. Stone’s case, their employer chose to end their working relationship based largely on the controversial photograph and the resulting backlash. This decision reflects the tenuous nature of the at-will employment relationship, and does not raise any First Amendment concerns. Ms. Stone was free to exercise her right to free speech in taking and posting the photograph, and her private employer was free to terminate her as a result of that decision.
Though the employer terminated the two women involved in this situation, most employment disputes are not as straightforward, and often contain complex legal and factual issues. Because of these complexities, it is impossible to state a general rule that would apply to every exercise of free speech in the workplace. If you have a question concerning these issues, or any other employment matter, a Klenda Austerman attorney can be of assistance and is happy to sit down with you to discuss your case and your rights. For further information, please contact Aaron Good at firstname.lastname@example.org.
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