The Ethics of Free Speech – Social Network Edition

A few weeks ago we talked about the First Amendment implications of Facebook posts – specifically, posts made by middle school students accusing their teachers of various despicable crimes for the fun of it. Now, for those of you who have forgotten, children of that age have always delighted in heaping abuse upon any teacher who isn’t a complete favorite of theirs, and using criminal terms as pejoratives simply because it’s another form of abuse. The idea that this might be wrong, let alone actionable in a legal sense, is an alien concept even to these children of an interconnected age. My point in calling it to your attention is that it won’t always be that way; that as the case law regarding these types of writings is developed, the law will probably come to view writing anything about another person in a social networking forum as being no different from publishing such things in a newspaper or saying them on the 11:00 news. The very nature of private communications – and public behavior – is about to change, and there’s nothing we can do about it…

As managers, however, it is our job to find a way to run a business operation without either infringing upon the rights of our employees or allowing our customers, vendors or supervisory personnel to be publically slandered. This raises a number of additional issues, and I thought it might be interesting to take a closer look at some of them. For example, does a business have any right to regulate what its employees write on their own Facebook pages, web sites or blogs while off-duty and not working or speaking for the company? The First Amendment just says that Congress can’t pass laws limiting freedom of speech or freedom of expression; a private employer can impose any rules of conduct they like, so long as those rules are applied to all of their employees in a non-discriminatory manner. But while a company regulation that states you will be fired if you speak badly of the company or a specific client in public might be legal (especially in states like California, where you can pretty much contract with anybody to do anything you like), I have to ask if they would be ethical?

Then there’s the question of how is the company supposed to monitor or verify what their employees do online. Any postings made under the employee’s own name would be relatively simple to find, but what is the company supposed to do about accounts opened and maintained under a pseudonym? Just trying to monitor the places where somebody could have posted negative comments of some kind would require endless amounts of labor, draining company resources away from more critical uses. One could quite legitimately argue that as the duly appointed representatives of the stockholders, it is our duty to make sure that company resources are not wasted on marginal activities like attempting to monitor every moment of the online lives of our employees. But if don’t monitor those online activities, how can we hope to enforce such policies, assuming we have them in the first place?

In the long run, it’s going to come down to the question of what we can reasonably expect of reasonable adults in this brave new Internet age. Can the company expect its employees to understand that everything they say (or do) in public can have consequences and will cost them their jobs (or their careers) if the wrong person sees those posts or actions and takes offense? Or should we just have every employee sign off on agreements that absolve us of responsibility for anything they do or say online, and then throw them off the back of the sled if there are ever any complaints? Should we lobby for new laws that support such an arrangement – knowing that our own personal ability to sue will also be curtailed by such laws – or just let things shake out however the case law takes them?

It’s worth thinking about…