The First Amendment

“They can’t fire you for posting that!” “Free speech, buddy!” “We can say whatever we want.”  “We’re protected by the First Amendment!”  These statements often appear, separately or in a group, in the comments section of news articles about social media users being punished for unpopular speech. But are any of these statements true? What does the First Amendment actually say about what we post on Facebook, Twitter, Instagram, and all the other apps we use to stay connected? The full text is as follows:

“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.”

If you look closely at the text, you will see that private individuals and companies are not mentioned. The Supreme Court has said that the amendment applies to both federal and state actors. In other words, the government, both federal and state, as well as public entities of the state, has to avoid passing laws and acting in other ways that impermissibly restrict speech. However, this restriction on the government’s power does not protect speakers from social consequences of their speech. The following examples illustrate the far-reaching effects of using social media unwisely.

Education & Funding

In 2015, a nursing student posted troubling comments about other students on Facebook. The nursing program determined that the student’s posts violated the Nursing Association Code of Ethics. The student insisted that the off-campus speech was covered by the First Amendment, and that he could not be punished by being ejected from the program. However, the court determined that the unethical and unprofessional behavior could be punished by the nursing program: they had the right to take away his funding and remove him from the program. The First Amendment did not protect that particular speech. See Keefe v. Adams, U.S. Court of Appeals for the Eighth Circuit, 2016.

Hiring & Firing

Job Offer Rescinded

In 2009, a recent graduate, Connor Riley, aged 22, suddenly found herself without a job offer when Cisco, her soon-to-be employer, was notified of this tweet: "Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work."

After Twitter dubbed her the "Cisco Fatty," Riley's internship was quickly revoked by her offended hiring manager. See https://www.nbcnews.com/id/wbna29901380.

Veteran Employee Removed

In 2010, Octavia Nasr, CNN’s senior Middle East editor, was fired for this tweet: “Sad to hear of the passing of Sayyed Mohammad Hussein Fadlallah. One of Hezbollah's giants I respect a lot."

Although Nasr quickly apologized and removed the tweet, the damage was done. The tweet had circulated widely and drew quick criticism from the United States and Israel. Although Nasr’s tweet was an expression of her own political opinion and not intended to be a statement of her employer’s position, CNN fired Nasr shortly afterwards. See https://www.theguardian.com/media/2010/jul/08/octavia-nasr-cnn-tweet-fired.

Is Social Media SAFE to Use?

The consequences of using social media unwisely can be both far-reaching and devastating. What is “out there” on the internet stays on the internet. Even if users delete their posts, websites may continue to store the data. Also, other users might already have saved or shared the content. A single post can be seen by hundreds if not thousands of viewers a day, reaching far beyond the original poster’s intended audience.

As described above, people have lost their scholarships, admission to universities, job offers, and life-long careers by posting poorly-worded comments on social media. Even a picture can cost a Facebook user his or her job. Consider Ashley Payne: in 2011, the teacher lost her battle in court after the school fired her for posting pictures of alcoholic beverages while she was on vacation in Europe. See https://www.abajournal.com/news/article/judge_rules_against_teacher_who_says_she_was_fired_over_facebook_photos/.

At this point, some might ask: why should I use social media? How can I use it safely? Here are three simple guidelines for using social media wisely:

• Use Facebook, Twitter, Instagram, etc. to connect with friends and family in positive, uplifting ways. Post that cute photo of the new baby, the family pet, or Grandma’s cookie recipe. Use this space as an opportunity to stay in touch with loved ones who do not live nearby. Having your support system at the tips of your fingers can be a breath of fresh air while you are working a competitive job or pursuing a challenging degree.
• Use professional networking sites such as LinkedIn to establish a professional image. Post your job qualifications, what sort of position you are looking for, and samples of your work and/or writing. Show professionals in your field of interest that you are someone they should “keep in the loop” when it comes to job and academic opportunities.
• Use sites like Instagram and Tumblr to express your creativity. Show us a picture you painted, a photo you took, or a poem that you wrote. However, the old adage still applies: you probably would not want to post anything you would not want your grandmother to find.

In other words, exercise both common sense and an abundance of caution while using social media. Pause before posting. Ask yourself, “Would I be embarrassed if everyone saw this? Is it all right if this comment or photo is out there forever?” With a bit of planning and forethought, using social media can be both an enjoyable pastime and a useful tool, including for connections, for young and old alike.