Does What You Say on Facebook Fall Under “Freedom of Speech”?
By Kyu Hee Chu
Reviewed by Cynthia Amis
Who doesn’t have a Facebook these days? When you write something personal on your Facebook page, do you think that it could get you into trouble with your boss or with your school? Even if you take steps to censor everything on your page and set the privacy settings, is that enough? Many people would probably agree that a person should not be fired from their workplace or suspended from school because of something they posted on their Facebook page, especially if it was intended to be viewed only by their friends. However, people may be surprised to find out that there is not as much protection for individuals as they might like to believe.
I. What is Freedom of Speech?
Freedom of speech is a right which protects people from efforts by the government to prohibit protected speech and it is found in the First Amendment of the United States Constitution. Although the First Amendment only speaks to the federal government, the Fourteenth Amendment protects freedom of speech as against state governments. This means that the freedom of speech cannot be abridged or prohibited by any state or by the federal government.
II. How Does the Law Affect Social Networking?
a) Social networking websites and blogs are partially protected under the Communications Decency Act and the Digital Millennium Act.
Social networking websites and blogs that present information that are provided by third parties but don’t themselves create that information, are protected by the Communications Decency Act § 230. For example, Schneider v. Amazon.com, Inc. is a case in which the plaintiff brought a lawsuit against Amazon because Amazon didn’t remove negative reviews written by third parties of the plaintiff’s work. The court there found in favor of Amazon because Amazon was not an “information content provider,” which means Amazon is not the creator of the information, and is thus protected under CDA.
The Digital Millennium Copyright Act (DMCA) § 512(c) provides protection against liability for copyright infringement as long as these sites have a means of allowing copyright owners to ask for removal of the content that is written on the websites by third parties. To fall under the protection of DMCA, the site cannot collect any financial benefit from the writing.
b) Individuals who actually write the content that causes problems don’t have a lot of statutory protection. Therefore, they may try to argue that their post is protected by freedom of speech.
1) Private Employees
Private employees don’t really have much freedom of speech protection when they are fired for something they wrote on their blogs or social networking sites. Exceptions are made when the employee is in a protected class, for whistle blowing, or when it relates to union activities.
As a result of much social networking site-related firing, a few terms such as “Dooced” and “Facebook Fired” have come about. “Dooced” comes from the author of dooce.com who was fired for writing about her work and “Facebook Fired” is when someone is fired because of something on his social networking site or a social networking site is the medium through which he is fired.
2) Public Employees
When public employees are fired for such reasons, they may make claims for freedom of speech and/or due process under 42 U.S.C. § 1983.
For public employees, the Pickering-Connick test governs the issue of whether a public employee’s speech is protected. First, the employee’s speech must be of public concern. Second, if it is of public concern, then the court weighs the employer’s interest in getting work done with the employee’s interest in speech regarding a matter of public concern. In this way, there may be protection under freedom of speech for public employees, but as you can see, it is quite limited.
As the younger generation is born into and grows up with blogs and social networking websites, the issue of schools disciplining students for what the students write on these sites is increasingly an area of great concern. It seems that as of now, schools can discipline students for activities that are likely to cause disruption at school. For example, in Wisniewski v. Board of Education of the Weedsport Central School District, the suspension of a student who used an instant messenger icon that seemed to hint that a teacher should be shot was upheld by the court. The court found that this did not violate the student’s freedom of speech. However, there is an exception when the content falls under political speech.
III. Possible Changes in the Trend?
Although it looks pretty gloomy for individuals who are fired or suspended for their activities on blogs and social networking sites, there are cases that give a little bit of hope, and seem to indicate that there may be some changes on the way. One such case is NLRB v. American Medical Response of Connecticut. In this case, Ms. Souza who complained about her boss on Facebook was fired. The NLRB then brought a lawsuit against the AMR, arguing that the AMR’s policy was against the National Labor Relations Act. The case eventually settled, and although Ms. Souza was not able to get her job back, the AMR agreed to change its policies so that it doesn’t place unconditional restrictions on employees from discussing their work outside of the workplace setting. Regarding this case, Professor Callan at Seton Hall Law School commented that this case may have expanded free speech by allowing employees to talk about their supervisors online. However, since this case was settled, it seems that we have to hold tight to see whether this is indeed the case and the direction the courts are willing to take.
Another interesting case to keep an eye on is Byrnes v. Johnson County Community College. In this case, a nursing student, Ms. Byrnes, posted a photo of herself and a patient’s placenta on her Facebook, and was expelled because of it. The student sued the school arguing to have the expulsion reversed, and the court granted it to her. The reasoning was that first, the patient was not able to identify the placenta through the photo, and second, when the clinical supervisor allowed the students to take the photo, it was reasonably foreseeable that the photos would be shown to others. Thus, is the lesson of this case that if you give permission to a student to take a photo, then you cannot hold them responsible for it and then expel them for it, because it would be reasonably foreseeable that by your giving consent to their taking the photo, you consented to it being shown to others? This may have unintended far-reaching effects that we have yet to see.
IV. What does this all mean?
Although there are a few cases in which individuals are able to be remedied for being fired from their jobs or expelled from their schools, it seems that as of right now, the law is still not very protective of the individual who gets fired. Furthermore, there does not seem to be a clear standard for which a private employee or a student can be held liable for his activities on a blog or a social networking website. Perhaps the law will be spelled out more clearly as more lawsuits arise from employees being fired and students being expelled or suspended from school, but until then, think twice before you write something on Facebook that you wouldn’t want your boss or school teachers to see!
 16B C.J.S. Constitutional Law § 789 (2011).
 Cydney A. Tune, Blogging and Social Networking: Current Legal Issues, 929 Practising Law Institute 73, 80 (2008).
 Emily H. Fulmer, Privacy Expectations and Protections for Teachers in the Internet Age, Duke L. & Tech. Rev. 1, 12 (2010).
 Christopher Danzig, Insulting Your Boss Online Is Now Protected Speech, Above the Law (Mar. 31, 2011, 4:01 PM), http://abovethelaw.com/2011/03/insulting-your-boss-online-is-now-protected-speech/.
 Kashmir Hill, PPP: Poor Placental Precedent?, Above the Law (Jan. 27, 2011, 3:48 PM), http://abovethelaw.com/2011/01/ppp-poor-placental-precedent/.
 Eric Goldman, Nursing School Can’t Expel Students for Posting Photo to Facebook –Byrnes v. Johnson County CC, Technology & Marketing Law Blog (Jan. 26, 2011), http://blog.ericgoldman.org/archives/2011/01/nursing_school.htm.
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