Yes, you can be fired for social media posts, and you have no re - KPLC 7 News, Lake Charles, Louisiana

Yes, you can be fired for social media posts, and you have no recourse

Source: KPLC Source: KPLC
LAKE CHARLES, LA (KPLC) -

Despite what you believe, freedom of speech does not shield you from consequences for things you post online. It's a common misconception, but like it or not, that Facebook post you thought was intelligent or funny could haunt you forever, and there's nothing you can do about it.

You may remember video of a man named Adam Smith berating a Chick-Fil-A employee back in 2012 when the restaurant chain's president expressed support for traditional marriage.

"I don't know how you live with yourself and work here. I don't understand it," Smith is heard saying in the video. "Chick-Fil-A is a hateful corporation."

"I disagree. We don't treat any of our customers differently," the employee replied.

Smith followed, "I know but the corporation gives money to hate groups."

Smith, the highly-compensated chief financial officer of an Arizona-based medical device manufacturer at the time, thought he was being bold by posting the interaction online in an attempt to shame the company. What he learned, instead, was that it was stupid and cost him his career. Smith was fired shortly after and to this day is struggling to find meaningful work.

"It went viral, and it really has caused some tremendous heartache not only for himself but also his family, and it's made it very difficult for him to find another job," said Bradley Shear, a Washington, D.C.-based attorney focusing on digital, technology, and privacy law. Much of his workload revolves around employers and their ability to search private information on employees' or job applicants' social media sites. When KPLC spoke with him, he repeated, several times, the warning he gives all of his clients.

"It's very imperative to really think long and hard before every time you hit 'send' on every type of digital content that you post."

That's something former PR executive Justine Sacco evidently did not do. Her case was one of the more infamous examples. In 2013, she was boarding a flight to South Africa when she tweeted: "Going to Africa. Hope I don't get AIDS. Just kidding. I'm white!" When her flight landed 11 hours later, her tweet was trending worldwide. Three days later, she was unemployed.

"In general, most jobs out there are at-will employment, and under at-will employment you basically can be fired for just about anything, and whether or not that's fair or not, that's beside the point. The bottom line is that you just don't know how people are going to perceive what you post," Shear said.

And, of course, the Texas firefighter who lost his job recently for a post he made in a discussion about the Charleston, South Carolina church massacre.

Closer to home, a Southwest Louisiana woman said she was given the option to resign or be fired from her position over some posts she made following a local court trial.

"It was never biased. It was very personal to me, but I was stating facts only. It wasn't malicious, there was no name-calling. I wasn't speaking in profanities. I was speaking in general terms," she said.

She asked that we conceal her identity because she is having tremendous difficulty finding another job. We assigned the pseudonym "Emily" for this report.

"I have applied, I can't even tell you how many places around here."

She said shortly after starting her job, she posted what she calls factual and statistical information regarding that case. Screen shots of her posts made their way to her boss.

"As soon as I sat down, he asked if I knew why he wanted to speak with me. I told him that I assumed that it was because of my KPLC comments, and he said it was, and then he just basically said that he was disappointed in me, that I was supposed to be one of his top people and that he had no other choice."

Although she said she was hurt, she understands why it happened and that it was a very good lesson learned.

"Especially with all these new things like the Confederate Flag, the legalizing gay marriage, I have not posted my opinion on either side of that because I just don't know if it's worth it. I don't know who's gonna go back and look at what I've said and not agree with me then decide not to hire me or to not let me stay with them."

You might be screaming "What ever happened to free speech?" A lot of people are a somewhat confused about the protections offered by the First Amendment.

At KPLC, we constantly delete comments and ban users from our Facebook page due to hateful comments and vulgar language. While some slip through the cracks, we, as does every private business, reserve the right to monitor our page as we see fit. We've actually received calls from some questioning why we think we have the right to suppress your freedom of speech. Since you asked, let's clear up what freedom of speech really is.

Many perceive it is their right to post material on social media without consequence.

"You don't have freedom of speech in private enterprises. What The Constitution protects is what we call 'state actions.' State actions are government actions, so it can be federal, local, or state, so I don't want people thinking when I say state action it only applies to Louisiana, Texas, or wherever you live.' So KPLC is a private actor - gets to decide what type of behavior they can regulate, so if they say something you don't like, 'tough' is the response generally 'cause the federal government, state government, unless there's a law involved with it, has nothing to do with how you regulate your business," said Jessica Markstrom, Visiting Lecturer at McNeese State University.

The precise language is "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..." But what does "abridging the freedom of speech" really mean?

"It has a full range of freedom of expression, so it not only means me getting up on a soapbox and giving a speech, or for that matter somebody standing in the middle of the McNeese Quad telling the McNeese students and faculty that they're going to Hell and attacking Catholics, but it also entails symbolic speech," said Dr. Henry Sirgo, Full Professor in McNeese's Department of Social Sciences.

It does NOT mean you can't be fired from your job for something you post.

"If you post something, and your boss sees it, that's a whole other... it's open. The other issue I think a lot of people are intermixing with Facebook, social media, is for some reason, they're saying 'it's my friends that are around me, so this is a private action, so how dare you?' You don't have a zone of privacy when you put something out into the public sphere. So when you put something on Facebook, your future employers, where you live, if you live in a dorm and you might be doing something that the dorms don't allow, all of that means that you have now availed yourself to being open," Markstrom said.

And if you think privacy settings will protect you, content you post on social media is constantly being sold to data brokers who, in turn, sell that information to an array of recipients.

"That could potentially end up in some type of digital dossier with a data broker, and that information may be sold to insurance companies, could be sold to potential employers, so even if you have the highest privacy settings on your personal account, the problem is that the privacy policies and practices on some of these companies, in particular Facebook and Google, are very troubling, and your content is not going to be protected," said Shear.

Translation: Once you post something online, it's property of that site.

Despite all of that, you can actually threaten someone online and be protected legally. It sounds absurd, but a recent Supreme Court ruling protects you in that regard. Freedom of speech does not protect against threatening or inciteful speech - against certain people. For example, you can't threaten the life of The President, or encourage the masses to riot - the metaphorical shouting 'fire' in a crowded theater. However, the Supreme Court actually paved the way for someone to post threats against others - as long as the sender's intent is insincere.

Yes, you read that right. If someone posts a violent threat online, it's up to prosecutors to prove the sender actually intended to make good on it. In June 2015, the high court ruled in favor of Anthony Elonis who was sentenced to 44 months in prison in Pennsylvania for threatening to murder his then ex-wife and behead an FBI agent investigating him using Facebook to carry out his threats. His attorneys argued he didn't intend to harm anyone, that they weren't "true threats" and that he was simply venting frustration artistically, similar to what rappers do.

"Proving intent is extremely difficult. It's a question for the trier of fact, be it a judge or a jury, and it's hard to do," said Ohio-based attorney Mike Allen.

In overturning the conviction, the High Court ruled just because a message causes genuine fear, it does not make it illegal. But that doesn't apply when the target is a juvenile.

"Some people might say 'it's free speech for me to say whatever I want.' No, that is not the case. When you malign a juvenile, whether it be by text message, by photographic images from a cell phone, a web cam, or on Facebook, you just can't do that. That is, in fact, against the law. We can and will prosecute people, even if they're 14-years-old for doing that," said Calcasieu Parish District Attorney, John DeRosier.

Derosier said young teens could end up doing time if caught, as his office embarks on a campaign to combat cyber-bullying.

"This is so dangerous. People don't realize that their words on the internet and their photographic displays on the internet can shame somebody or embarrass somebody or hurt somebody so badly that they do something dramatic to themselves," he said.

And given today's tech tools, tracking the author of such messages is relatively easy.

"Identifying the perpetrator is not difficult because the electronic trail leads right to the person that instigated it," DeRosier added.

In the end, it's best to exercise caution when posting messages. Given the rash of controversial issues before us, it's easy to get caught up in the emotions surrounding such talking points. You are free to say what you want but are not immune from the possible consequences.

"I advise people just to stay away from posting anything controversial online and being very careful about what you put in an email because you just don't know where it's gonna end up or how it's gonna be utilized against you in the future," Shear said.

"No matter what you post, it does follow you around, and I'm sure that they've heard that a million times, but it's true. My advice to them would be to always be respectful, that you do have a voice, but to use it in the best way possible. You don't want the negative feedback. It's not worth it," Emily said.

"One tweet. One statement is all it takes in the world of Twitter, in the world of social media to cost somebody their career," said Mediaite Columnist, Joe Concha.

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