When Free Speech isn’t So Free – Why The Constitution Kinda Doesn’t Matter

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It’s 8 o’clock. Do you know where your employees are?

You are probably going to see a lot of press in the near future that a simple like is protected free speech.  Before you start thinking that this is going to allow all sorts of silliness and risk for you and your company, step back and breathe.  The one thing that folks who don’t understand constitutional law always miss is that with respect to the employer/employee relationship there is no such thing as free speech.  Unless your employer happens to be the government.  Which is what happened in a case where a deputy sheriff was fired for liking their boss’ rival during an election season.

So, unless you are a government employer, you need to step back a little.  This recent decision does give us a chance to revisit my thoughts on social media postings, employees and policies.  First, let’s look at what the decision really says.

A like can be free speech

I agree, in part, with that the appeal court said when they reversed a lower court ruling that held that a like wasn’t free speech.  In sum what the appeals court said was that liking something on a social network was akin to placing a sign in your front yard.  I think the result is correct, not because the reasoning is correct, but because it needs to be correct.  We need to protect our ability to say the things we want without the chilling effect of no protection.  The result drives the result, in my mind.

Let’s look at the reasoning.  Is the simple act of like on a Facebook wall akin to placing a sign in your front yard.  Do you come home and see suggested signs in your driveway, each of them inviting you to plant them.  Do you go home and say I wonder what so and so is doing, and then given the opportunity to magically wish a sign indicating your like for them.  Think about my scenarios for a moment.  That is about what the effort to like something on Facebook is.  There really is no effort.  This has been an argument used in other venues against placing some special status to likes.

Remember the SEC’s statements last year about testimonials and social networks?  We all read that and we said that can’t be.  A like is too easy to rise to the level of a testimonial.  Our arguments were bolstered by the lower court ruling in this case.  Now we are back to square one.  Courts and regulatory agencies regularly look to each other to form opinions about things.  With this appeal court ruling are we looking at a place where the simple act of liking is given prominence, prominence akin to that of an actual statement?

Cognitive dissonance is the anxiety of holding two or more conflicting thoughts.  So right now I am feeling a bit of anxiety.  On the one hand I think liking something is insubstantial, but on the other it should be free speech.  So the appeals court gets it right, but for the wrong reason.

What does this mean to you as a commercial brand?

The answer is almost absolutely nothing.  Your employees have no such thing as free speech.  Absent some agency telling you that you can’t do it, or some work contract, you could tell all your employees to never talk about your company, to never say anything bad, or to just say the things you want them too.  Fortunately, for employees, we do live in a world where some of their work-related speech is protected.  Note the use of the word protected.  It is not free speech, it is merely protected.  Protected by regulation.

When you have humans as employees, they will do human things.  Until robots make us all obsolete this will always be the reality.  There is positive there, though.  They will do amazing things that are totally unexpected.  Most of the time they will be very positive.  They will multiply your communications and marketing efforts.  Your employees really are your best ambassadors.  Everyone gets so would up about the negative.  There is no control over it, you can merely manage it.

So we are back to this managing thing.  You can only hope to manage it.  We have talked about managing it, over and over again.  Training, setting expectations and providing examples are the ways you can manage it.  Enforcing your existing employment agreements and policies is another.  What is not a way is trying to control it with some purpose built document outlining in excruciating detail what your employees can not do in social media.

If you are a brand and you looked at this ruling and freaked out, you need to re-evaluate how you look at your employees engagement in social media.  If even for a second you had some anxiety go back to the basics of social.  The platforms are all there for the users.  Your brand is there at the sufferance of the users.  Employees are just users wearing a different color.

One last bow to wrap it all up

Be very careful when you read these articles.  Constitutional protections are only there against the power of the government.  They generally do not apply to the actions of a commercial brand.  However, you can take some hints from them.  Not because your own regulators watching your activity will take their hints from them.  Though they will.  But because they sometimes give us a glimpse of what the right thing to do is.

Is it right to fire an employee because they liked a competitor brand on Facebook?  No.  We shouldn’t need a court to tell us that.  Start from doing the right thing by your employees regarding their engagement on social and you will invariably be rewarded handsomely.

Related Articles

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8/2, Sitting on the Fence? Get Off! – Employees and Social Media

7/25, Employees Are Not The Enemy – Ditch Your Social Media Policy

6/28, Let Employees Out of Their Cages – Advocacy

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