Free Speech is in The News: What You Need to Know

Some Georgia workers are learning the limits of free speech as they face discipline for social media comments in the wake of the fatal shooting of right-wing influencer Charlie Kirk.

Cobb County schools, Children’s Healthcare of Atlanta, Delta Air Lines and a piano bar, Savannah Smiles, are among Georgia employers that have either fired or placed on leave employees because of comments related to Kirk’s stunning death last week.

GPB’s Orlando Montoya talked with Emory law professor Deepa Das Acevedo about the intersection of free speech, employment law and social media.

Orlando Montoya: First of all, broadly speaking and briefly, where does the law in Georgia come down between protecting an employee’s freedom of expression and protecting a company’s reputational integrity?

Deepa Das Acevedo: So one thing that is important to remember as a baseline is that employees in the private workforce, whether they’re in Georgia or elsewhere in the country, do not, generally speaking, have federal First Amendment rights at work. So you can be fired for something that you said on socials at a football game and so on. There might be some limitations on that, but we don’t really have any of those limitations strongly applicable in Georgia.

Is there any difference between categories of workers in relation to the rights they have? For instance, perhaps back-of-the-house dishwasher versus corporate leader, or public versus private workers.

What matters more for analyzing employment rights, including speech rights at work, isn’t so much whether you hold a particular role, but the type of worker you’re classified as being. So are you an employee or are you independent contractor? That makes a difference, legally speaking. And one of the differences that you mentioned matters a lot: Are you a public sector employee or are you a private sector employee? Public sector employees, people who work for some branch of the government or some state actor, do have some free speech rights at work, but private sector employees don’t.

What about academics? We always hear about academic freedom, but it’s shaky.

Well, this is getting close to home!  But academic freedom, generally speaking, is not considered a legally enforceable right. It’s an industry norm. It is something that universities, as employers and scholars, faculty as employees, believe is necessary in order for professors to do the work that they were hired to do. But it’s not the same thing as saying that you have a constitutional or statutory right to engage in certain types of work and that you can bring a lawsuit if you were fired for engaging in those types of permissible speech.

GPB has not seen the social media posts in question by the employees of Cobb County Schools, Children’s Healthcare of Atlanta, or the other employers that I mentioned earlier. But they’re clearly unacceptable to the employers. How can companies and organizations define unacceptable speech and train workers to understand what’s expected of them, especially in politically sensitive and emotionally charged situations?

I think it’s really important for employers first to have their own idea of what they consider acceptable boundaries of speech, particularly when employees are speaking in a private capacity. If you don’t have a sense of that as an employer, you can’t possibly communicate that effectively to your workforce. So first, employers need to kind of settle on what they are willing to tolerate and what they feel is too dangerous to their business for them to be able to tolerate. Once they’ve done that, I think it is important to have clear, consistent communication and training for employees in advance. This is not something that you want to be solving after the fact. This is a kind of shared norm that you to establish within the workplace in advance of specific incidents happening because we never know when something’s going to come up.

Is there any difference in rights workers have between unacceptable speech — that is, celebrating someone’s death, racist comments, comments mocking a person’s disability or religion — compared to merely political speech, that is, “I like Trump,” “I liked Biden.” Are there protections for political speech?

The answer is “yes” and “no.” For the most part, though, the answer for people who work in the private sector is “not really.” The content of the speech does not matter so much as the fact that you are, again, either a public sector worker or a private sector worker, or you fall into certain types of classification. Because, at the end of the day, What one person considers you know, political speech that isn’t clearly unacceptable and speech that is clearly unacceptable is a subjective decision.

I know an employer cannot fire you because of race, religion, sex and similarly protected classes, but as you said, they can fire you for political speech. So what about when sort of political topics touch on those protected classes — for instance, like immigration or gender equality or civil rights — can an employer’s discipline in that context be litigated as harassment?

There’s certainly the potential that if a speech act intersects with some other grounds for termination that’s not legally acceptable, like an adverse employment consequence being disciplined or being fired because of your race, because of your national origin and so on, there is certainly the possibility that the employee could litigate that decision. But what’s really doing the work there is that other thing. It’s not the speech act, per se.

Bottom line, what’s your best advice for social media behavior right now, given these divided, tense and politically fraught moments that we’re in?

What this moment is telling us is that once again, social media is something not to be afraid of, but to be used carefully and intentionally. What you put out there in a moment, in the heat of the moment, is going to stay out there long after you have calmed down or your perspective has shifted. You can’t take that back. And so I think that in a moment of extreme strife, extreme hardship, if you feel like you need to, you know, share a thought, express an emotion, find a friend and do it in person. Don’t do it online.

That’s Emory law professor Deepa Das Acevedo. Thanks for weighing in on this topic.

Thank you so much, Orlando.

• Georgia lawmakers to colleges: Don’t limit free speech
• Ralston: Georgia’s maternal mortality rate is ‘completely unacceptable’
• Modern Phone Manners – Is it Goodbye to Hello?
• ‘That’s Your Money, Not The Government’s:’ Kemp Proposes Income Tax Cut

[mailerlite_form form_id=47]