The government can’t pass a law that restricts students’ freedom of expression—that right is guaranteed in the First Amendment. But the Constitution doesn’t apply strictly to what companies can do, and they fire people all the time based on comments posted on social media. Writing in The Paw Print at Oakdale High School in Ijamsville, Maryland, Sarah Ghaffari asks, “Should What Someone Says on Social Media Be Grounds for Getting Fired?”
Ms Ghaffari quotes one junior as saying, “I often worry about if my boss will see my tweets. It is my social media, so I should be allowed to post anything I want without having to worry about who will get offended.”
That’s how it works for public schools, which is what students’ social media use is most closely tied to, since public schools are restricted in what they can and can’t do, how they can and can’t punish students, by the Constitution. “Neither students nor teachers shed their constitutional rights of freedom of speech or expression at the school house gate,” the Supreme Court ruled in the case known as Tinker v Des Moines School District.
Companies play by different rules. They can hire and fire whomever they want for just about any reason. For them, offensive posts by employees have a way of affecting the bottom line.
Consider a waitress who posts a photo of a restaurant bill on which a customer left a 25-cent tip on a $100 check. When other customers see that, even if the name is blurred out, as it usually is, they are likely not only to sympathize but also to understand that going to that restaurant might end with their dinner check on Facebook. That’s very likely to make them consider not eating at that particular establishment, especially if they’re unusual tippers.
One of the little-known side effects of so-called “business-friendly” laws is that they tend to allow corporations or sole proprietorships to restrict employees in ways the government (and schools) can’t.
Social media platforms like Facebook do allow users to control who sees each post, but not everybody uses those setting to their fullest. While making an attempt to limit the audience is admirable, it’s often ineffective, given the wide open nature of the internet. Ms Ghaffari concludes:
Anything on social media can be seen by the public, but if one attempts to keep something on their profile private, or among friends, and it is somehow seen by a boss then the employee shouldn’t be fired. However, if one makes information visible for all, and is in some way demeaning, or offensive, they should be subject to public opinion.
In general, restrictions on speech from the First Amendment apply to the content of the speech itself. As Ms Ghaffari introduces a requirement that the person standing in judgment—an employer or HR manager—consider the audience of such speech, such a restriction wouldn’t even be a consideration in cases of the government firing an employee.
Posts on social media are not private, even if the initial audience is limited, as we all know. Plus, criminals in other countries have found ways to attack the integrity of social media platforms in order to accomplish their missions, which also aren’t governed by the Constitution.