Facebook & free speech: what rights do workers and students have to speak their minds online?

• Author: Smith, Patricia
• Position: Cover story

A couple of years ago, Timothy DeLaGhetto, a waiter at a California Pizza Kitchen in Long Beach, California, was unhappy with the company's new uniforms. So he did what so many young people do these days: He tweeted that the uniforms were "lame."

California Pizza Kitchen was not amused. DeLaGhetto was fired.

But under a recent ruling by the National Labor Relations Board (NLRB), a federal agency that protects the rights of private--sector employees, the company probably wouldn't be able to take that action today. The NLRB has declared that company policies prohibiting employees from making any negative work-related comments on social media are illegal.

The ruling is part of a broader First Amendment debate over social media and the rights of workers and students to speak their minds online when they're not on the clock or in school.

When the Bill of Rights was ratified in 1791, the Framers could never have imagined social media and the vital role they're playing in everyday communication in the 21st century. Now the courts and the federal government are trying to figure out to what extent posts and other activities on Facebook, Twitter, and elsewhere online are covered by the First Amendment's free speech guarantees.

The NLRB ruling technically comes under labor law, rather than the First Amendment *. However, it's still seen as an important development in the debate over free speech in the Internet Age.

"Many view social media as the new watercooler," says Mark Pearce, the NLRB's chairman, noting that federal law has long protected the right of employees to discuss work--related matters. "All we're doing is applying traditional rules to a new technology."

The NLRB is now telling companies that it's generally illegal to adopt broad social media policies--like bans on posts that criticize the employer or on "disrespectful" comments--if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits, or working conditions.

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In addition to ordering the reinstatement of various workers fired for their posts on social media, the agency has pushed companies nationwide, including General Motors, Target, and Costco, to rewrite their social media rules.

At the same time, employees can't say whatever they please online and expect to keep their jobs. Take the 2010 case of a police reporter at the Arizona Daily Star. Frustrated by a lack of news, the...