Corporate Social Media Policies and Freedom of Speech

As social media continues to explode, businesses are realizing that they must adopt an official policy regarding their employees’ use of social media.  Lately, it’s been a topic everywhere from The Washington Post to the NFL.  The real question is not about when and where employees should be allowed to access social media (obviously, if your time on Facebook is impeding your productivity it’s a problem) or how they should conduct themselves while acting as an official representative of the company (on the company’s Twitter account, for example), but rather what is or is not appropriate use of social media by an employee when they are acting in a personal capacity.

In short, when I’m tweeting on my own time with my personal Twitter account, is it any of my company’s business what I tweet?  We already know that it’s become common for employers to peek at your Facebook page before hiring you, so what’s to prevent them from continuing to monitor your page once you’ve been hired?  And can your employer hold you responsible for content that’s on that page?

With the health care debate raging these days, you hear a lot of talk from certain sectors about the rise of a tyrannical government.  Personally, I am not nearly as concerned about the government exerting control over my personal life as I am about my employer.  When the Founding Fathers drew up the Constitution, their fear of a tyrannical government was palpable, so they explicitly crafted protections against this.  However, they had no conception of multi-national corporations like Wal-Mart spanning the globe.  So while people rally to protest government intrusion into personal choices like what they can say, who they can marry and which doctors they can visit, they turn a blind eye to the fact that businesses are already dictating those choices for them.  The media outlets scream, “Don’t let Washington come between you and your doctor!” in the hopes that you won’t notice that your insurance company and your employer have always been between you and your doctor.  Big Brother is far more likely to take the form of a corporation than a government these days, but we all miss that fact because we assume that “freedom” means “freedom from government restriction,” not “freedom from any restriction.”

Given my stance on personal freedom, it should come as no surprise that I don’t think your employer should have the right to govern your personal online behavior, so long as it is clear that you are not representing your company.  After all, we are not required to represent our companies during every second of every day.  We ought to be allowed to act and speak as we wish on our own time.

Of course, the counter argument is that even though these acts are in our private lives, they are in a very public forum.  After all, saying something in a conversation at a dinner party with a few guests is not the same as saying something on Twitter, where the whole world can see it.  And yet, my answer remains the same.  If I were to engage in a public offline act, such as participating in a political rally, it would be wrong for my employer to punish me for it; the same holds true for issuing an opinion on social media.  In short, I don’t believe than an employer should have the right to restrict a person’s freedom of speech outside of work.

My argument so far assumes that we are talking about a “normal” 9-to-5 job.  There are, however, many jobs that put an employee in the public eye, and employers often expect more of these people: athletes, celebrities, journalists, late night talk show hosts, etc.  These employees often sign contracts with morals clauses, that specifically forbid them from engaging in any behavior that would reflect poorly upon their employer.  They do this because they are so intricately linked to their company’s brand that the public automatically views their opinion as the company’s official stance.  For example, when ABC’s Terry Moran recently tweeted President Obama’s off-the-record description of Kanye West as a “jackass,” was it possible for the public to separate his personal tweet from his company’s reporting?  The New York Times published a very thought-provoking article this week on how many public figures, from singer Courtney Love to Dallas Mavericks owner Mark Cuban, have gotten themselves into trouble by tweeting.  If you specifically sign an agreement in which you state you will abide by a certain code of conduct in public, it seems to me that your social media communications would be covered by this agreement (although social media ought to be addressed specifically in such contracts moving forward).  However, I see no reason to implicitly hold every “normal” employee accountable to these standards, and I think it is unreasonable for companies to demand that employees abide by such contracts unless they are public figures.  Disney may suffer financially if Miley Cyrus goes on a bender and posts photos of it on MySpace, but Wal-Mart won’t suffer if a check-out clerk does the same.

Moving forward, I think there ought to be legal protections against employer retribution for employees who use social media to exercise free speech.  Free speech is vulnerable, but not nearly as vulnerable to government restriction as it is to corporate restriction.