How Free Speech and Social Media Fit Together

social media viewpointsYou’ve heard it or have seen it posted…

Someone saying they can say whatever they want, post whatever they want and no-one can do anything to them.

As if the First Amendment is their sword and shield. And you can’t do anything about it.

Freedom of speech. Three words that get thrown around and written about so often that what the expression means is more about misinformation than truth.

And misinformation can be detrimental to online professionals as they try to separate the wheat from the chaff and understand a right so important to the foundation of the United States that the founding fathers made it the first amendment to the Constitution to better clarify what rights belong to its citizens.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Source: First Amendment, U.S. Constitution

This article will specifically focus on the portion relating to speech and how this applies to the online community.

In 1996, in the landmark case Reno v. ACLU, a unanimous Supreme Court specifically extended the First Amendment to written, visual and spoken expression posted on the Internet.

For those of us who work in an increasingly online environment, more and more we’re seeing behavior that would never fly in the “real world.” Social psychologists are having a field day picking apart tweets, status updates and social network posts.

As you’ve likely seen, people will say anything! Justified or not, the fact is many people feel safe in their cocoon of online anonymity.

Of course, the First Amendment doesn’t give us the right to say whatever we want, whenever we want, to whomever we want. But that doesn’t stop people from thinking otherwise.

“Speech” Is More than Written or Spoken Words

While the dictionary definition of speech may be limited to the written or spoken word, we’re really looking at types of expression. This applies to visual interpretations, as well as artistic forms of speech.

In addition, symbolic speech—symbols that have meaning (for example, a swastika or peace sign)—is covered by what we often refer to as freedom of speech.

What Speech Is Protected by the First Amendment?

The right to free speech means that you are allowed to express yourself without interference or constraint by the government. And while that seems very broad, the U.S. Supreme Court has been involved in this debate for nearly a century and has determined that the government can limit both the content of speech and the ability to engage in speech as long as the government has a “substantial justification.”

It’s nearly impossible to create a list of what types of speech are protected because there are quite a few caveats, and “it depends” would be tacked onto the end of each enumerated list.

Take advertising, for example. Advertising is a type of commercial speech. Commercial speech is a specific type of speech afforded First Amendment protections. It has been defined by the Supreme Court as speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character.

However, the FTC and the FCC are both permitted to restrict certain types of advertisements. They restrict those that are misleading or deceptive or use profanity, racial slurs or nudity. Clearly, the FTC and FCC are both arms of the government. Advertising (“Commercial Speech”) is then protected speech, sometimes.

What is NOT Protected Speech?

Fortunately, the U.S. Supreme Court over time has created a number of categories of speech that are not afforded protection. What this means is that these types of speech are subject to prohibitions.

censored human

Free speech doesn't mean free to say whatever comes to mind. Image: freedigitalphotos.net

Prohibited speech

  • Fighting words—speech that would incite hatred or violence has been constitutionally prohibited for nearly 60 years.
  • Advocating illegal activity—speech that would encourage others to engage in illegal activity is not afforded any protection.

Limitations Placed on Speech

  • Commercial speech—a specific type of speech afforded First Amendment protections.
  • Obscenity—is regulated, and depending on the context, can be prohibited.
  • Defamation—publishing a statement that is false, although proffered as fact, that is harmful to the reputation of another person or organization.
  • Profanity—different from obscenity, profanity can be regulated if it is integrated into speech that is clearly prohibited.
  • Copyright, trademark and patent—regulated by law and giving owners exclusive rights, others are prohibited from speech or expression that infringes on an owner’s rights.

How Free Speech and Social Media Fit Together

There are a number of different roles in social media. As a business professional, maybe you’re monitoring various social platforms as an in-house employee or for clients, or possibly you’re an entrepreneur using social networks to grow your business.

Whatever your role, it is clear that you’re often on the front end of creating and evaluating a variety of speech and expressions, both outgoing and incoming. So how do you create rules and policies that don’t encroach on another’s rights while still managing the overall experience?

social network crossword

With due diligence there is always a workable solution. Image: freedigitalphotos.net

User-Generated Content

One of the hallmarks of social networks is user-generated content. Many organizations encourage users of their online community, Facebook page or Twitter account to engage and communicate freely.

However, it is imperative to have clear rules.  The relationship between the user and the organization is fluid and thus gives the organization a wider range of options.

User-generated content can be as widely or narrowly restricted as the organization sees fit. Unless there are instances where speech is proscribed by law (i.e., defamation, copyright), an individual or organization is free to set whatever guidelines for user-generated content that fit.

For example, there is often a lot of discussion with regard to a company deleting what they believe to be inappropriate user-generated content on social platforms. The user (and often other users) becomes incensed or outraged when his or her content is deleted. Legally, the organization is likely on very solid ground to delete content. That does not mean, though, there won’t be backlash with regard to the ethics of doing so.

Additionally, it is both necessary and required to moderate content that would be considered defamatory or infringing on another person’s rights (e.g., copyright or trademark). Just because you’re not the government doesn’t mean looking the other way when a user is clearly engaging in prohibited or restricted speech. While there could be unhappy users, a clear policy will establish that all online speech is not created equal.

Employee-Generated Content

People who work for an organization have two roles—one of employee and one of private individual. Regulating what an employee does within the purview of his or her job is handled by employment laws. However, as online time has became more interwoven into millions of people’s daily lives, the line between work and private lives has begun to blur.

What used to be private conversations are often now very public. Regardless of what level of security one may set, amassing followers or friends or readers starts to erode the argument that posts are indeed private conversations. Although there is no set number, you have to ask yourself at what point your social profile goes from a private conversation to one that is open for the world to see.

When employees act as private individuals and not as representatives of the company, it’s difficult for companies to prohibit their speech or expression. Does it happen? All the time! We’ve all heard stories of people fired for doing things on their personal time. Tell your boss you’re sick and then post a picture or video on a social site of you at the ballgame? Be prepared to face the consequences. Should employers have the right to use something from your private page?

Recently, the National Labor Relations Board (NLRB) has taken on several cases where employees were fired based on status updates to Facebook or information posted on their personal blogs outside of work. While the NLRB has gotten involved with recent clashes with speech and social media when it comes to employment, there is no clear-cut set of rules as to what an employee can say about his or her work environment on Facebook (or on any other social network, for that matter).

Managing Defamatory Speech

Whether generated by users, customers or employees, organizations and business professionals must be vigilant about monitoring and managing social engagement for speech that could be seen as defamatory. While having clear social media guidelines is helpful, when dealing with defamatory speech, organizations (and even individuals) must act swiftly to quash it. If left up, it may be seen as supporting the speech, thereby opening the door to legal liability.

Protecting Intellectual Property

While we’ve discussed copyright fair use and how it applies to online images, it’s important to understand that online content and copyright are intricately woven together will keep you ahead of the game. And although it does not carry with it the same frequency, trademark infringement can be a concern as well.

Ensuring that content posted to a social network owned or managed by you, your company or your client does not infringe someone’s rights is not an easy task. Because of the harsh consequences, which include taking down a site or page, it’s imperative that you use high-quality social monitoring tools.

Conclusion

woman covering mouth

Not everyone will censor him- or herself; sometimes a business has to do it. Image: freedigitalphotos.net

Social engagement and community-building are important to growing a business. While the goal is to get users, customers and community members talking, not all speech is created equal. It’s not easy to give a bright-line list of what is or is not protected speech when it comes to social media. Online speech and expression are highly interwoven in contexts that may involve other areas of law limiting your right to silence detractors. Overall, though, censorship in corporate social media is not only alive and well, it is often a necessity.

What do you think? Leave your questions and comments in the box below.

Disclosure: The information provided in this article is for informational purposes only. Nothing should be construed as legal advice or creating an attorney/client relationship.
FreeDigitalPhotos images: Idea Go, jscreationzs & sippakorn

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About the Author, Sara Hawkins

Sara Hawkins is a lawyer, blogger and doer. No longer happy waiting for someday to find her, she's finding ways to make her somedays happen. Other posts by »




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  • http://intesols.com.au/ Moin Shaikh

    Sara, what here is written is really impacting the whole world today! Whether it is about initiating revolutions in egypt or occupy wall street or even SOPA and PIPA controversy, social media has played much vital role here. And big fact here is: the players in the field of social media in such revolutions were not those business honchos or tech experts, they were all common people, general internet users and social media community members. Social media just proved to be a lethal weapon for them. After all, it is era of FREE SPEECH AND SOCIAL MEDIA!! Thanks!

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  • Dduchek

    Hi Sara,
    An examples of limited speech would be: 
    You can’t yell “fire” in a building because someone might get trampled or crushed and die in the panic it would cause.

  • http://www.facebook.com/redbloodedamericangirl Anne Hayes

    Your post is just a little misleading.  The First Amendment is, expressly, a limitation on what speech government can limit; it has no application on what speech private entities, such as your employer, may limit.  A private entity cannot violate your free speech rights no matter what it does, because the right only applies against the government: “Congress shall make no law . . .”  It is utterly ridiculous for employees to start going on about the First Amendment when their private employer tells them that something is inappropriate on corporate social media (or on personal media during company time); it simply does not apply, and the employer may completely censor any employee speech on any company communication no matter what the subject–it need not have anything to do with fighting words, obscenity, intellectual property, etc.
    Insofar as an employer may be legally liable for violating an employee’s rights for being fired or disciplined for what they say or do on their own time, it is not so much a matter of First Amendment law as it is a result of statutory employment, labor, and civil rights laws, and they should not be confused.

  • http://www.peterwrightsblog.com Peter Wright

    Thank you for a good explanation of the background to the freedom of speech issue.

    Getting “incensed and outraged” when content is deleted from a business or other individuals page makes about as much sense as raging against an editor for not publishing a letter on the letters page of a newspaper or magazine in years past. (Still now for some of us) 
    The column inches in a hard copy publication are that medium’s owner’s property to fill as he or she deems fit, within the legal and copyright requirements.  From a freedom of speech perspective, the same should apply to our individual or corporate social media and website space. We should not be blackmailed into displaying unsuitable or damaging content posted by others on freedom of speech grounds. 

    While it might at times make marketing sense to let customers blow off steam by leaving complaints, post our own updates with action taken and then (we hope) their grateful responses, that is a marketing decision not a freedom of speech issue.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Yes, that is one of the classic examples used. Thank you.

  • http://www.homebaseddally.com/ Patricia Dally

    Good explanation about why all speech is not free – especially when that speech is on a business platform.  While the constitution guarantees us free speech, it is one of our rights where the rights of the individual do get weighed against the common good.  As a business application it is obvious that the business has the right to determine what best represents them – although that can be difficult to define.  That is where the rub comes in, how to limit the offense without limiting the free exchange of information.  

  • http://sarafhawkins.com/ Sara F. Hawkins

    I don’t think this post is misleading because I never say that it’s a First Amendment issue when businesses regulate speech of employees/customers. There is a big difference between ‘Freedom of Speech’ as defined by the US Constitution and what people this of as ‘free speech’. I clearly state that regulating employee’s speech is covered by other laws, not the First Amendment.

    You’re right that people do go on and on and on about being censored by a laundry list of people and entities, none of which are the US Government. However, the interwoven nature of employment laws and the First Amendment don’t make this a very clear cut discussion. There is a lot of ‘maybe’, ‘however’ and ‘possibly’.

    This article is written to help social media, marketing and business professionals understand how First Amendment (Freedom of Speech), free speech (the believe that one can say anything they want because the company can’t regulate them), and social media are intertwined. This was not a pure First Amendment discussion.

  • http://www.singfreenow.com Mark Bosnian

    “Not all opinions are created equal” – Socrates
    This relates to Rush Limbaugh types. Free speech has its downsides, but should be defended.

  • http://www.thinkche.com/blog/ Kristine Co

    This is a very compelling post that speaks to the importance of remembering that although the internet and social media has given us so much more access to accessing and disseminating information as we please, we have to keep in mind that there are still boundaries that, if crossed, could hold legal ramifications. Great reminder that the internet, although chaotic and abounding with information, is still governed by a legal framework that protects individuals and companies.

  • JocelMR

    I really enjoyed this article as it has given me a lot to think about with regards to developing a social media policy. Thanks for putting this together, Sara.

  • http://www.socialdon.com/ Facebook Statistics

    Agree with some points. Blocking social media and mobile phones is similar to the old-school jamming of radio signals during combat to disrupt the enemy’s communications. But now the lines of communication are so diverse and portable that jamming them all is next to impossible. Anyone with a smart phone can carry access to Facebook and Twitter in a pocket, and the sites are also as big as life on tablet computers.

  • WordsmithD

    Great information and analysis.  People too often forget that, even for protected speech, freedom of speech does not mean freedom from consequences of that speech.

  • Dduchek

    True!

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    You have really come up with great debate here, I personally believe that Freedom of speech is valid and good until you maintain the prosperity in the country, and are not spreading any kind of hoax. 

  • http://www.dissertationworkz.com/phd-dissertation-writing PhD Dissertation Writing

    I personally feel that free speech and social media are identical to each other, however you must use them with care as it may cause you some problem.

  • http://bestresearchpaper.com/custom_term_paper term paper

    I totally agree with this article.

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  • Geary Juan Johnson

    You state: “Whether generated by users, customers or employees, organizations and business professionals must be vigilant about monitoring and managing social engagement for speech that could be seen as defamatory. ” Sounds like you are saying a company can be judge and jury. Hitler and Nazi Germany thought they were Judge and jury and the ban on freedom of speech and burning of books. How soon we forget.

  • Geary Juan Johnson

    See the Free Dictionary: Defamation

    “Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

    “Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander.

    “The probability that a plaintiff will recover damages in a defamation suit depends largely on whether the plaintiff is a public or private figure in the eyes of the law. The public figure law of defamation was first delineated in new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In Sullivan, the plaintiff, a police official, claimed that false allegations about him appeared in the New York Times, and sued the newspaper for libel. The Supreme Court balanced the plaintiff’s interest in preserving his reputation against the public’s interest in freedom of expression in the area of political debate. It held that a public official alleging libel must prove actual malice in order to recover damages. The Court declared that the First Amendment protects open and robust debate on public issues even when such debate includes “vehement, caustic, unpleasantly sharp attacks on government and public officials.” A public official or other plaintiff who has voluntarily assumed a position in the public eye must prove that defamatory statements were made with knowledge that they were false or with reckless disregard of whether they were false.”

    Where the plaintiff in a defamation action is a private citizen who is not in the public eye, the law extends a lesser degree of constitutional protection to defamatory statements. Public figures voluntarily place themselves in a position that invites close scrutiny, whereas private citizens who have not entered public life do not relinquish their interest in protecting their reputation. In addition, public figures have greater access to the means to publicly counteract false statements about them. For these reasons, a private citizen’s reputation and privacy interests tend to outweigh free speech considerations and deserve greater protection from the courts. (See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]). ”

    Editor: There are certain elements necessary to prove defamation. For a business to allege someone is defaming them must meet the legal definition to be actionable. Firing someone from a job by alleging defamation or banning someone’s social media comments by alleging they are defamatory would be a misuse of the law.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @gearyjuanjohnson:disqus while the law exists to set forth the elements that have to be proven for damages (in a civil case) or for the government to seek criminal charges, the laws for defamation don’t automatically prohibit employers or social network platforms from prohibiting conduct they feel is inappropriate, reprehensible, or unethical. There is no law that says a private company or individual can’t delete/ban comments or users if the comments don’t comply with the terms of use. At the same time, while there are prohibitions for terminating employment under certain circumstances, US labor laws do not provide for protections against defamation (real or alleged) unless the comments could be protected under whistleblower statutes. Public comment (with regard to criminal charges) are regulated in many instances but defamation has never been a form of protected speech.









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