The State of Free Speech
How the First Amendment affects you, professionally and/or personally.
The first amendment right dramatically changes depending on whether an individual works for the public sector or the private sector. Public sector essentially “consists of governments and all publicly controlled or publicly funded agencies, enterprises, and other entities that deliver public programs, goods, or services” (The Institute of Internal Auditors, 2011). Some examples of public sector jobs include health care, police, military, public education, and government work. The private sector, however, refers to “the part of the Country’s overall economy which is controlled by individuals or Private Companies” (Thakur & Vaidya, 2021). Private sector includes sole proprietors, partnerships, small and medium-sized business, large multinationals, professional/Trade Associations and trade unions.
Individuals working in the public sector have their freedom of speech protected (with some limits, for example public release or discussion of sensitive or classified information) by the first amendment. This means that in general retaliation for an individual engaging their first amendment rights “shouldn’t” happen unless that speech is a matter of “public concern” and are not able to be discharged from their job without “just cause”. As a public sector employee, the first amendment protection also covers “whistleblowing” and suing the government. The controlling law that backs the first amendment for this is the 1968 ruling by the supreme court in Pickering v. Board of Education when they stated "the interests of the [employee] as a citizen, in commenting on matters of public concern" must be balanced against "the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees" (Renner, 2021). Issues of public concern include “matters of elections, pending legislation, corruption, race discrimination, public health and safety” (Renner, 2021).
In contrast, in general the first amendment does not extend to individuals in the private sector. Freedom of speech in the private sector workplace is left up to the discretion of the employer, however workers have laws such as anti-discrimination and whistle blower laws that offer protection for certain types of speech (corporate.findlaw.com, 2022).
Many individuals have had their employment terminated for speech or content posted to their personal social media accounts. For individuals in the private sector who sign a contract to work “at the will” of their employers, this means that at any time an individual can be terminated/fired by the employer as long as the action was not done for an illegal reason such as discrimination or harassment. In this case, a person may find that their freedom of speech is limited both inside and outside of the workplace because of economic or workplace pressure.
Is the First Amendment under more threat today than in the past?
In my opinion, the first amendment may be more under threat than ever before. Some of the threats relate to security of private data to the retaliation by private sector companies who control the platforms that much of society uses to communicate. Facebook for example is a social media platform, however it also owns 78 other companies including Instagram and WhatsApp. Mark Zuckerberg controls roughly 53.3% of the voting power over Facebook and its policies, and by extension what and how people can communicate (Hallman, 2021). As of December 2021, Facebook accounted for some 71.8 percent of all social media traffic, followed by YouTube, WhatsApp, Instagram, Facebook Messenger, WeChat/Weixin and TikTok (Statistica, 2022).
Former President Trump was banned from using Twitter and Snapchat permanently, and indefinitely suspended from Facebook, Instagram, Youtube and Twitch. As a result, his ability to reach well over 90 million of his followers with his thoughts and opinions on those private platforms were taken (Lima, 2021). His ban from those platforms came in the wake of the January 6th siege on the capital. It was widely believed that as a direct result of his speech, people engaged in violence even though he himself do not directly encourage violence. He did however, spread verifiably false information (election fraud), and since the platforms he used are privately owned corporations they do not have to offer the same protections as a public entity. The threat to the first amendment here is a person who uses social media can find themselves silenced through what amounts to “at will” termination. There are many YouTubers and Twitch content creators for example who have found their channels of communication and business closed as result of perceived violation of a platform’s policy rather than an actual violation. This issue however affects all individuals who use private sector technology and/or platforms for free speech. Censorship and Moderation in the context of using third party platforms control not only extremist and hate speech, but all speech.
Facebook has faced a number of scandals over the years, however the Cambridge Analytica scandal revealed that the private speech and choices of individuals became the property of a third party without their consent (Lapowsky, 2019). That information was then analyzed and used to influence popular opinion during the 2016 election in the form of psychological profiles. The threat to the first amendment here is that freedom of speech includes private data, which was violated and is more and more frequently under threat of being violated.
Yet another threat to the first amendment is freedom of the press. During 2020 and 2021, many legal observers as well as journalists were targeted by local and federal police while documenting the civil unrest that occurred (Simon& Ruane, 2021). Journalists were harassed, threatened, arrested and had physical forced used against them by law enforcement. Journalists also found themselves under verbal attack by public officials and in some cases banned from documenting some events. The threat to the first amendment here is that law enforcement controls what journalists can and cannot observe or report on. This control also extends to private citizens who use technology to record or broadcast an event.
References:
Simon, K., & Ruane, K. (2021, August 6). ACLU News & Commentary. American Civil Liberties Union. Retrieved January 9, 2022, from https://www.aclu.org/news/free-speech/freedom-of-the-press-is-under-attack/
Lapowsky, I. (2019, March 17). How Cambridge Analytica sparked the Great Privacy Awakening. Wired. Retrieved January 9, 2022, from https://www.wired.com/story/cambridge-analytica-facebook-privacy-awakening/
Lima, C. (2021, May 5). Social Media: Where Trump is welcome - and where he's still banned. POLITICO. Retrieved January 9, 2022, from https://www.politico.com/news/2021/05/05/where-trump-can-and-cant-post-on-social-media-facebook-twitter-485343
Hallman, C. (2021, December 28). Everything Facebook owns: Mergers and acquisitions from the past 15 years. TitleMax. Retrieved January 9, 2022, from https://www.titlemax.com/discovery-center/lifestyle/everything-facebook-owns-mergers-and-acquisitions-from-the-past-15-years/
Statistica. (2022, January 7). Most popular social nectworks worldwide as of October 2021, ranked by number of active users. Retrieved January 9, 2022, from https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/
Thakur, M., & Vaidya, D. (2021, September 20). Public sector vs private sector. WallStreetMojo. Retrieved January 9, 2022, from https://www.wallstreetmojo.com/public-sector-vs-private-sector/
The Institute of Internal Auditors. (2011). Supplemental Guidance: Public Sector Definition. Retrieved January 9, 2022, from https://global.theiia.org/standards-guidance/Public%20Documents/Public%20Sector%20Definition.pdf
corporate.findlaw.com. (n.d.). Freedom of speech in the workplace: The first amendment revisited. Findlaw. Retrieved January 9, 2022, from https://corporate.findlaw.com/law-library/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html
Renner, R. (2021). Workplace fairness. Retaliation -- Public Employees and First Amendment Rights. Retrieved January 9, 2022, from https://www.workplacefairness.org/retaliation-public-employees