In this day and age, almost everyone has at least one form of social media profile. Since there are few immediate consequences for anything you say on social media (with rare exceptions), it can feel like a private echo chamber, where you can be as honest—and as potentially offensive—as you want. However, too often, your social media is visible, and if anything you say is deemed offensive, there is a good chance your employer will find it. So the question remains, can you be fired for social media posts?
Free Speech Still Has Consequences!
There is a persistent misconception in U.S. education regarding the nature of freedom of speech as enshrined in the U.S. Constitution. Namely, that the First Amendment allows any opinion to be expressed at any time, with no repercussions whatsoever. This is factually wrong, for two reasons.
First, there have been what are called “time, place, and manner” restrictions on freedom of speech since the very beginning of the United States’ existence. That is, the timing, location, and style of speech can be regulated, even if a person has the right to speak out.
Second, simply reading the First Amendment shows immediately that it is only aimed at government regulation of speech. The phrase “Congress shall make no law” indicates that the amendment is trying to regulate the behavior of the government. However, there is no discussion whatsoever of private employers’ behavior that may be similar. Private employers have much more leeway to discipline their employees over opinions or actions that they find objectionable or believe paint the company in a bad light.
South Carolina’s Political Opinion Exception
Since the First Amendment doesn’t govern the behavior of private companies, employees can be fired for social media posts that may imperil the company’s reputation or make it harder to do business. This can happen even if the employee is posting on a personal account, while they are off the clock. This may feel unfair, but it is doesn’t infringe on the employee’s First Amendment rights.
That said, South Carolina does have a state law protecting political opinion. Specifically, barring termination from employment on account of one’s political opinions, or the “exercise of political rights and privileges” that everyone is granted under the U.S. Constitution. It can be difficult to clarify what is “political” and what is not. For example, expressing hatred of a minority group is generally not seen as political, but expressing support for a public policy that disadvantages a minority group may be. This type of decision is very often a case-by-case determination.
Contact A South Carolina Employment Discrimination Attorney
The right to free speech is one that everyone in the U.S. takes seriously, but it has never been completely without regulation. If you have been terminated or faced other negative employment action due to something you posted on social media, be advised that in most cases, you have little recourse. However, it’s often a good idea to contact a South Carolina employment discrimination lawyer to ensure your questions get answered. Attorney A. Christopher Potts and the firm of Hitchcock & Potts have handled many of these cases and are ready to assist you. Contact our offices today to set up a consultation.