Once again, the 1st Amendment to the Constitution is in the news. This time, however, the reason is a little different than the usual protest speech or rights of artists. This time, one of the stars of the popular show "Duck Dynasty" has made some unpopular comments related to homosexuals and African Americans in a recent GQ article. As a result, the show's host channel, A&E, has temporarily suspended one of the show's stars, Phil Robertson. While it seems everyone has an opinion on this issue (what's new?), one thing is certain - people still do not have a strong enough grasp of what the free speech section of the 1st Amendment really means. This is an important lesson to learn, not only for employees, but also for managers and business owners who may need to terminate someone for the types of messages they communicate in public.
Let's take a quick look at the text in question before hashing out what this means for employees and employers:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Seems simple enough, but many people do not really pay attention to what is being said and who is being limited. Notice that it begins by saying "Congress shall..." This foundational law applies to the government, and caselaw has shown over time it also applies to other arms of government like state universities and other organizations close to the government. With a few limitations, the basic premise is that the federal, state, and local governments cannot pass laws that limits free speech.
Hopefully, you've already caught the problem that arises when people yell "free speech!" in response to limitations or criticisms for what they said. Freedom to say what you want in public, does not insulate a person from the risidual effects of that speech. It does not protect a person from public criticism, nor does it protect a person from fallout in the private world.
Both employees and employers need to understand that businesses have an image to uphold with the public. They may have stockholders to answer to. Any behavior or choices that impacts a business' ability to operate in a way that makes it profitable is a threat to that company and may have a negative impact on its profitability and success. With the ubiquity of social media in our lives, headlines about employees terminated for facebook rants about bosses or customers, twitter comments that are racist or homophobic, and the like, are becoming more and more common.
Simply put, an employee should not expect to make statements that could be damaging to their employer's reputation without the potential for termination. An employer should not be too worried about terminating employment of someone who makes horrific statements in public that have a negaitve impact on the company.
To sum it up: Freedom of speech does not mean freedom from consequences.