Primer: Businesses aren’t bound by the First Amendment

constitutionAn employee tweets something that you, as a business owner, don’t like, and maybe worse, your customers don’t like it, and some of them get together and threaten to cause a stink that can hurt business if you don’t do something about it.

You might decide to let them do their thing; you might decide to do something to the employee, a public reprimand, or at the most extreme cut ties.

Then people on the other side, who agree with what the employee said, for example, for or against a woman’s right to reproductive choice, or gay marriage, two particular hot-button issues in the here and now, respond by threatening similar type actions that could impair your business, and in their uproar, they trumpet to the world that not only are you weak-spined for caving in to the first group, but you’re violating your employees’ First Amendment rights.

You may be weak-spined, depending on the perspective, but since you’re not Congress, you’re not capable of violating anybody’s First Amendment rights.

The First Amendment expressly prohibits Congress from passing any law abridging the freedom of speech. That’s it: Congress. It doesn’t say that an employer can’t fire an employee for saying (or tweeting, or Facebooking, or skywriting) something that the employer doesn’t agree with.

So from a purely legalistic perspective, the argument that you’re violating someone’s freedom of speech is bunk. Keep this in mind if you find yourself in the unfortunate position from a marketing standpoint of having to defend yourself in one of these kinds of situations.

Now, another perspective on freedom of speech is, OK, smartypants, you might not be Congress, but what about the basic freedom that any person should have to speak what’s on their mind? Diving into this one isn’t hard, either. You’re free to speak your mind, for example, for or against gay marriage. If I disagree with you, and act accordingly, be speaking in opposition, or if I’m an employer, and you’re my employee, by firing you, am I not also exercising my own freedom to speak my mind?

The natural freedom to speech doesn’t preclude one from having the freedom to disagree, and disagreements can be resolved in any number of ways, hopefully short of violence. (The world still has wars.)

We all certainly hope that we can resolve any and all disputes short of violence, or even lawsuit or threat of lawsuit. But that said, none of us are bound to stifle our own freedom of speech because someone else has chosen to exercise.

Having been so advised, feel free to disagree now. It’s the American way. (If our forefathers and foremothers didn’t disagree, we’d still be a British colony.)

– Column by Chris Graham


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