Free speech, the Supreme Court and social media, oh my!

We are at an inflection point. This has been building for years, although it is easier to see with the benefit of hindsight. The pandemic forced employers and employees to utilize remote forms of communication and monitoring. Politics ooze in every aspect of our culture and daily lives with no intention of finding middle ground or compromise. Social media gives a platform to every village idiot and genius alike, but the messages that trend are usually the most divisive forms of tribalism and virtue signaling. Simply put, technology has outpaced our ability to put guardrails around permissible and impermissible speech, a problem that is exacerbated by the current state of political discourse. By way of illustration, the quintessential example of unprotected speech is yelling “Fire!” in a crowded movie theater, right? But what if the theater attendees were all virtual? Are the limits of speech in a large physical space the same for a virtual one? Should they be the same when the virtual forum reaches exponentially more people? What about misinformation during times of public health crisis like a pandemic?

These issues have been bleeding into the workplace for years, but began accelerating since the dawn of social media and entered warp speed with the pandemic. And now 2023 enters stage left, with more workplace litigation involving online speech, regulation/censorship and Supreme Court showdowns than at any time in the last few decades.

What is free speech?

To begin, we should remember the First Amendment of the United States Constitution (and the entire Bill of Rights) applies to the government’s ability to restrict speech, regardless of whether that speech is in-person or on social media. The First Amendment does not apply to private employers (Carter v. Transp.). While private employees may have the freedom to speak their minds in an actual or virtual space without government interference, the Constitution does not protect them from discipline by a private employer.

For public employees, however, the analysis is different because their employer is a subdivision of the government. Specifically, public employees have a limited First Amendment right to free speech in their place of employment when their speech touches on matters of a public concern. Courts will balance whether the employee’s free speech interest in the topic outweighs the public employer’s interest in promoting the efficiency of the public services it performs through its employees (Connick v. Myers). In other words, public employers have an interest in maintaining a disruption free workplace and courts will evaluate whether the speech is of some greater political, social or other concern to the community at large as opposed to an expression of a personal grievance. Whether an employee’s speech addresses a matter of public concern depends on the content, form, and context of a given statement.

Employers should also remember there are a patchwork of federal and state laws protecting an employee’s right to engage in certain forms of speech and expression. For example, the National Labor Relations Act prohibits any employer policy or action that interferes with an employee’s ability to engage in concerted activity with other employees, such as discussing wages, working conditions or union affinity. Title VII of the Civil Rights Act prohibits discrimination based upon certain protected classes and may require employer action when employee speech or conduct violates those provisions.

There are also numerous state laws that – to varying degrees – protect speech and lawful off-duty conduct. For example, according to the labor code of California and Colorado, these states protect an employee from engaging in “lawful conduct” while not working and off-duty. Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, and West Virginia prohibit interference with an employee’s political activity. Connecticut state law extends First Amendment protection of employees to private employers.

Government regulation of speech on social media

Now, the Supreme Court is being asked to decide one of the most important free speech cases in decades. Specifically, they must decide whether and to what extent the government can regulate content of social media platforms following split decisions by the Fifth and Eleventh Circuit Court of Appeals. The cases both involve state laws (Texas and Florida) passed by conservative legislatures attempting to curtail perceived bias on social media. In Texas, House Bill 20 prohibits social media platforms from censoring speech based on “viewpoint of the user or another person.” In Florida, Senate Bill 7072 restricts social media platforms from “censorship” or “deplatforming” users unless certain conditions are met. Both laws were immediately challenged by trade associations that represent the companies operating social media platforms, arguing that these laws infringe on their First Amendment rights by restricting their ability to moderate, curate and decide what content to feature on their platforms. These trade associations compare social media platforms to newspapers that exercise free speech by deciding what to print or not. In both cases, the state laws were enjoined and appealed to their respective appellate courts.

On May 23, 2022, the Eleventh Circuit issued its decision in NetChoice, LLC v. Attorney General, State of Florida, finding Florida’s law was unconstitutional and violated the First Amendment. Specifically, the Court notes that “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” Social media companies “engage[ ] in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms.” As an example, the Eleventh Circuit notes that Florida’s law was “so broad that it would prohibit a child-friendly platform like YouTube Kids from removing — or even adding an age gate to — soft-core pornography posted by PornHub, which qualifies as a ‘journalistic enterprise’ [under SB 7072] because it posts more than 100 hours of video and has more than 100 million viewers per year.”

On September 16, 2022, the Fifth Circuit issued its decision in NetChoice, L.L.C. v. Paxton, finding that the Texas law did not violate their First Amendment rights and “reject[s] the idea that corporations have a freewheeling First Amendment right to censor what people say.” The Fifth Circuit went on to note that while the First Amendment protects every person’s right to free speech, it did not agree “that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”

With the split decisions between the Fifth and Eleventh Circuits, it is likely the Supreme Court will agree to hear the cases. If they do, it would be the first time the high court weighed in on the role of social media giants and the First Amendment. These decisions are crucial and have the potential to fundamentally change the way that social media companies regulate all types of speech on their platforms, including hate speech, political speech, or any speech that could be considered an expression of viewpoint.

Medical misinformation & religious freedom

California recently signed a bill that would punish doctors for spreading false information about COVID-19 vaccines and treatments. The law designates the spread of false or misleading information about the virus to patients as “unprofessional conduct” and subject the offending doctor to regulatory punishment by California’s Medical Board, with punishments ranging from fines to suspensions to license revocation. California’s Governor Gavin Newsome says in a statement that the law would “apply only to those egregious instances in which a licensee is acting with malicious intent or deviating from the required standard of care…” The new law is already facing legal challenges from doctors claiming it violates their First Amendment rights by restricting medical advice they can provide to patients. McDonald v. Lawson et al alleges that “[d]isagreement is integral to the progress of medical science” and the law is “particularly objectionable in the context of a new disease like COVID-19 [where] consensus opinions and official guidance have regularly adjusted as new information is learned.”

Although litigation surrounding the California misinformation law is still in its early stages, the line between individual free speech and government regulation is something the current Supreme Court has shown a willingness to hear and decide. Recently, the high court in Kennedy v. Bremerton School District found a Washington state school district (public employer) violated a football coach’s First Amendment rights by disciplining him for praying on the 50 yard line after games. Writing for the Supreme Court’s conservative majority, Justice Gorsuch found the Constitution counsels “mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike ….We are aware of no [Constitutional requirement for] government to be hostile to religion in this way.”

Yet another free speech & religious freedom decision is expected from the Supreme Court in 2023. In 303 Creative, LLC v. Elenis, a Colorado website designer’s refusal to create websites for same-sex couples based upon a religious objection was found by the trial court and Tenth Circuit Court of Appeals to have violated Colorado’s Anti-Discrimination Act. The state law prohibits businesses from refusing to serve someone on the basis of certain characteristics, including “sexual orientation.” The Supreme Court agreed to hear this appeal and a decision is expected soon. Although it should be noted these facts are roughly analogous to a 2018 Supreme Court case involving a Colorado baker who refused to bake wedding cakes for same-sex couples. In that case, the high court punted on the important constitutional question (i.e. does the Colorado law violate the First Amendment?) and decided the case on particularly narrow grounds based upon state officials’ comments expressing hostility towards religion.

Related: HR lessons from Elon Musk’s Twitter takeover

These are just some of the free speech issues to be decided at the highest level in the next year. The issues in these cases have a far-reaching impact of national importance and will change our understanding of free speech as we continue to grapple with the concept in new and different technological mediums. The next year is shaping up to be pivotal in defining the limits of online speech and regulation; so far, the only thing certain is that the stakes could not be higher.