‘Free Speech’ Comes With a Price

In the days following George Floyd’s death, Americans gathered in widespread protests across the country, calling for reform in police departments and an end to systemic racism. Videos of these emotional moments dominated social media: peaceful protesters marching through the streets; looting that decimated thousands of city businesses; and people of different ideologies verbally and physically clashing.

One of those videos hit especially close to home for the promotional products industry.

In a disturbing 30-second clip recorded on June 2, a cyclist on a bike trail in Maryland was shown ripping Floyd support signs from two female teens and shoving the young man filming the attack. A few days later, the assailant was identified as Anthony Brennan, now the former executive vice president of Pleasanton, CA-based MadeToOrder (asi/259540).

Once it became clear who the cyclist was, the distributor acted swiftly. “MadeToOrder has zero tolerance for this behavior, and we took immediate and decisive action, terminating the employee,” the company said in a statement. “This behavior does not, in any way, reflect our company’s commitment to acting with respect and compassion to everyone within our company and those in our communities.”

Meanwhile, Brennan issued a statement through his lawyers that read in part: “I am sick with remorse for the pain and fear I caused the victims on the trail, and online. I am cooperating fully with authorities. I am committed to making amends by addressing, through counseling, the underlying issues that led to my abhorrent behavior. I am dedicated to working with the Montgomery County State Attorney’s Office to provide peace to our community and justice to the victims in the video, as well as to all victims of racism and police brutality.”

Brennan isn’t the only person who lost their job recently because of actions caught on video. A FedEx employee in New Jersey was filmed mocking Floyd’s death by pretending to kneel on another man’s neck; the video went viral and he was fired. The same day that Floyd died in Minneapolis, Amy Cooper, a resident of New York City, was let go from investment management firm Franklin Templeton after video surfaced of her calling the cops on an African-American bird watcher in Central Park and feigning distress after he asked that she leash her dog.

Franklin Templeton suspended Cooper at first and she gave up her dog voluntarily to a cocker spaniel rescue organization concerned about its wellbeing. The employer ended up terminating Cooper, though she did receive her dog back after the rescue determined he was in good health.

With the charged environment we’re all living in – fueled in recent months by restrictive stay-at-home orders and now anger at instances of police brutality – people have been moved to voice their opinions and stand up for their convictions. Some have gone further, becoming incited into violent and hateful behavior if they let their emotions get the best of them. In Brennan’s case, no one is questioning MadeToOrder’s decision to fire him and distance the company from his actions.

But what about the less obvious examples – such as a simple post on social media or a shirt worn in questionable taste – which are nestled in the many shades of gray? Is a person’s right to free expression (contained in the First Amendment of the U.S. Constitution) protected when it comes to their employment? Can employees say what they want on their personal social media or do what they want on their own time? You can, say employment lawyers; just don’t be surprised at the negative consequences – namely, the loss of your job.

Why Free Speech Isn’t Protected

The First Amendment of the Constitution, dating back to 1791, protects the free exercise of religion, speech, press and peaceable assembly. That means that all Americans have a right to express themselves.

But there’s an important aspect of the Amendment that’s often overlooked, particularly among employees in the private sector. Yes, they have the right to say what they want when they want, whether it’s a statement T-shirt at work in support of a cause, or a tweet from their private account on a Saturday afternoon. But it’s government prosecution that the First Amendment protects them from; the Constitutional text begins with “Congress shall make no law … abridging the freedom of speech…”

"There’s nothing wrong with saying what you want in this country, but you have to know there may be negative ramifications."Richard Roth, R. Roth Law

Workers in public jobs, such as post office workers, police officers and public school teachers and administrators, often have a “property interest” in their positions, meaning that state or local laws, charters or agreements guarantee that they can’t be terminated without “just cause.” This makes free speech a much more nuanced issue in the public sector. On the private sector side, the First Amendment does not protect those workers from being terminated, contrary to popular belief.

“There’s nothing wrong with saying what you want in this country, but you have to know there may be negative ramifications,” says Richard Roth, a securities, entertainment and business litigation and arbitration lawyer at R. Roth Law. “The definition of the First Amendment is very broad – you can say what you want where you want, as long as you’re not threatening ‘imminent lawless action,’ like yelling ‘Fire!’ in a movie theater or telling someone you’re going to shoot them. I can stand on the courthouse steps and say the judges here stink and they’re unfair, but I can’t say I’m going to kill them.”

So even though a person’s freedom to express themselves is generally protected from government interference, it doesn’t mean their private sector employer has to keep them employed if they don’t agree with what that person says or does, whether it’s inside or outside the workplace. Justin Meyer, a partner at Rosenthal Meyer PLLC, which covers a wide range of practice areas including business law, says it’s this simple: If you’re wearing blue and the CEO doesn’t like blue, they can fire you and don’t even need to give a reason. What if you work at Coke and you bring a Pepsi for lunch? Same thing.

“If someone says or does something that I don’t like, I can fire them,” he says. “Free speech protects individuals from government prosecution. So, I can’t be arrested for saying, ‘Defund the police.’ The government can’t stop people from protesting.”

In addition, 49 states (all except Montana) are “at-will employment” states, meaning employees can leave without reason and employers can terminate without reason and with no notice. This doesn’t include firing people because they’re part of a protected class, including race, religion, national origin, age, sex (including sexual orientation and transgender status, after a landmark Supreme Court ruling this month), pregnancy, familial status, disability, veteran status and genetic information. Employees also can’t be fired for exercising their rights under the Family and Medical Leave Act, the Fair Labor Standards Act and other statutes. (Note that if an employee is let go and they suspect it’s a direct result of discrimination or exercising their right under a protected statute, or if the employer has breached a contract, the former employee can choose to file a wrongful termination suit, depending on their state.)

Meanwhile, the rules governing independent contractors’ work status are different; depending on the state, they may not even be protected by anti-discrimination laws. They’re also not protected from a termination in relationship based on speech or actions, and the company they work for can choose not to be associated with them any more based on how they’ve expressed themselves.

“Contractors should look at the agreement they signed, but they don’t really have many protections,” says Michael Elkins, a labor and employment lawyer at MLE Law. “They can be fired for stupid or bad reasons. Discrimination laws only apply to employees.”

In these highly divisive times, private employees and independent contractors need to be very careful about how they portray themselves – both in the workplace and home offices as well as on social media and video. In at-will employment situations, which is the case for a sizeable number of workers in this country, the employee has no recourse.

“This is the way the law works, and with good reason,” says Roth. “What if everyone could sue? There’d be thousands of cases and it would bog down the judicial system.”

And it doesn’t just apply to what’s said or done in the office. If an employee posts or simply “likes” content on social media and management finds out and doesn’t agree with the sentiment, that employee could be fired – even if it took place outside work hours, on a private account not associated with the company. However, several owners of promo firms say they’re more apt to take action against an employee if he or she expresses an extreme viewpoint on a company social media account and/or while wearing something with the company’s logo.

Of course, the extremity of the sentiment takes precedence; for example, whether or not Anthony Brennan was wearing MadeToOrder-branded apparel (he wasn’t), promo executives in general agree he needed to be terminated.

Oftentimes, companies don’t even have to go look for employees’ activities on social; other users have shown they’re happy to research individuals, find out where they work and report their actions to their employers. It happened in the Brennan incident, where social media vigilantes first falsely accused other men, including John Damskey, a retired police officer from Maryland. Damskey and his family were “doxed” (an abbreviated term for “documents,” and a slang abbreviation of people going through online “docs” to find identifying info on others), a tactic where trolls find out personal information of their targets, including names, addresses and phone numbers, and encourage people to make threatening calls and intimidate them outside their homes.

While private employers aren’t legally obligated to terminate, in more heinous instances, immediate action mitigates the potential for more trouble in the future, Elkins says. If an incident were to happen at work down the line, such as an attack on a co-worker or client, the plaintiff could file a negligent retention claim, which asserts that an employer didn’t terminate an employee whom they knew had a tendency towards bad behavior such as violence, sexual harassment and dishonesty.

“They now have knowledge that that cyclist has a temper,” says Elkins. “Any plaintiff’s lawyer would point to that video and say, ‘Exhibit A!’ ” Similarly, Franklin Templeton now has evidence that Cooper exhibited poor judgment and acted irresponsibly.

Cooper was walking in a public park outside work hours, and wasn’t directly representing her employer, says Anthony Babbitt, a change management consultant and business strategist. Once that video came to light, it didn’t matter. “Her employer didn’t want to be associated with that behavior,” he says. “There have even been cases where people lost their jobs because of questionable actions years before that came to light.”

‘Private’ Social Media Isn’t Private

With the rise of social media, there’s not much of a dividing line anymore between private expression and an employee representing their company, says Elkins. That means those disclaimers in Twitter bios (“Opinions do not reflect those of my employer”) don’t mean much.

“The bottom line is that employees can be held accountable by their private employers for what they post or say,” says Elkins. “Private sector employees should be very careful relying on the idea that they have any significant amount of First Amendment protection from termination. They don’t. It’s one of the greatest legal urban legends.”

With that in mind, says Elkins, he doesn’t recommend that firms go on termination rampages because employees have expressed ideas with which the employer disagrees. “To the contrary, successful workplaces tend to encourage and accept a confluence of ideas,” he says. “So mere disagreement alone shouldn’t be the basis for termination. That’s an employment culture argument versus a legal argument.”

"Private sector employees should be very careful relying on the idea that they have any significant amount of First Amendment protection from termination. They don’t. It’s one of the greatest legal urban legends."Michael Elkins, MLE Law

Where employees have more protection from being terminated by the opinions they express, whether in person or online, is through “concerted activity” when they discuss workplace conditions among themselves, though this can be “very murky and complicated,” says Elkins. Under the National Labor Relations Act of 1935, “employees shall have the right to self-organization … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” That means employees can publicly discuss working conditions at a firm, though they can’t lie about a company or its people, only offer opinions, says Elkins.

While there are nuances, generally speaking this speech is protected from termination. “It can include posts about salary, working conditions or other topics that could give rise to a ‘concerted activity,’ ” says Meyer. “The National Labor Relations Board has found that these activities can take place over social media and don’t need to be in person to be protected.”

Still, when it comes to personal expression in these tumultuous times, private sector employees need to exercise caution, a caveat that’s returning to the spotlight because of how quickly and frequently people communicate, and the myriad platforms available to express opinions of all types.

“People don’t realize how stark the law is,” says Roth. “It used to be that employers only knew what you did in the workplace. That’s changed. If that cyclist had attacked those kids 10 years ago, he might not have been identified. It’s different now – there are cameras all over the place. And it really hurts people’s careers when they try to find another job.”

However, employers too need to exercise caution, because they could be accused of discrimination. “The reason for termination will be scrutinized,” says Elkins. Say a man from a minority group is fired for controversial content he posted on Instagram, but 15 white employees have posted similar things and weren’t fired. That could be a problem. “I tell my clients that consistency matters,” says Elkins.

The rise of social media certainly poses a challenge for employee relationships with their private employers. To that end, many firms even advise employees to steer clear of social media entirely. “Employers should let employees know they could be monitoring them,” says Meyer. “Many employee manuals now have social media policies that state they can ask employees to take down certain posts and they can terminate them.”

The sheer frequency of social media use and the constant recording and documenting of actions – whether it’s a video or just an offhanded “like” of someone else’s comment – means employees in the private sector need to be more cautious than ever to safeguard their employment status and career future.

“Always act as if you’re being recorded and your mother, priest, doctor, children, neighbors, employees, clients and boss will be viewing the tape,” says Babbitt. “The First Amendment provides protection from the government, but not from the private sector consequences of our actions and statements.”