The New Perfect Storm
Free-Speech Rights in the American Workplace and the Role of Public Relations
Written by Dr. Randy Bobbitt
The issue of free speech in the workplace has always been contentious, as legal cases in this area date back to the 1970s, when employees faced disciplinary action for challenging their employers' positions on national issues. But over the last decade, two cultural shifts—the rise of social media and a volatile national political climate—have coincided to create a “perfect storm” that has made workplace conflicts even more contentious.
Recently, issues within a company causing angst in the workplace include conflicts over COVID-19 masking and vaccination policies, as well as company policies regarding diversity, equity, and inclusion (DEI). External issues include the outcome of the 2020 and 2024 presidential elections, as well as national political issues such as immigration policy and American military involvement overseas.
One reason for the uptick in free-speech cases coming out of the workplace is that for the last half century, Americans have become hyper-sensitive to other people’s speech—even if it is legal and ethical—simply because it upsets their own sense of right and wrong, especially when it comes to delicate topics such as politics, religion, race, and sex.
The Chilling Effect
Modern-day labor law experts use the term “chilling effect” to describe the reluctance of employees to speak out for fear of losing their jobs.
Contributing to employees’ reluctance to challenge workplace rules regarding their free-speech rights is the inconsistency in results for those who have done so previously. With outcomes so uncertain, employees must weigh the perceived benefits of speaking out against the associated risks. In many cases, the “chilling effect” works to suppress their speech.
A 2023 study by LeanIn.org, a nonprofit organization co-founded by Facebook CEO Sheryl Sandberg, found that workplace speech is especially problematic for women, making them less likely to speak up in male-dominated workplaces. “Women self-shield or self-monitor, meaning they change the way they act or look, tone down what they say, or hide aspects of their identity to protect themselves from mistreatment,” stated the report, titled Women in the Workplace.
The study also found that nearly half of LGBTQ+ women admitted they tone down what they say to avoid being “unlikeable,” and nearly half of women with disabilities didn’t speak up or share opinions so supervisors or co-workers would not label them as “difficult.” The report concluded that such tendencies not only result in less workplace satisfaction for women but also contribute to health problems such as stress and high blood pressure.
Dividing Line Blurred
For decades, court rulings have drawn a dividing line between public and private employers. Public employers, including federal, state, and local governments; regulatory agencies; public universities; and school boards, cannot (or are not supposed to) limit their employees’ free speech rights or punish them after the fact for alleged harmful speech. In contrast, private employers can and do limit their employees' speech and impose appropriate punishment for resulting harm.
At least that’s the conventional wisdom. In reality, the dividing line is not as sharp as it might appear. Some government agencies, although constitutionally prohibited from encroaching on their employees’ speech rights, nevertheless do so, invoking a variety of justifications. Examples include branches of the military that limit the speech of their members in the interest of “maintaining order and discipline,” law-enforcement agencies that limit speech of their employees in order to “maintain the trust of the public,” and public universities that attempt to limit the controversial speech of faculty members in order to protect the reputation of the institution, avoid offending donors, provide a “comfortable learning environment” for students, and adhere to the letter and spirit of Title IX, a 1972 law dealing with sex discrimination in higher education.
In contrast, some private employers, while not obligated to do so, encourage free speech and debate among their employees to promote healthy debate in meeting rooms and around the water cooler. The result is a happier and healthier workplace and an edge in recruiting and retaining talent.
Scholars who study workplace speech are quick to point out these “exceptions” and “exceptions to the exceptions.” As Vanderbilt University Professor Bruce Barry points out, “Public employees have free-speech rights until they don’t. Private employees don’t have free-speech rights until they do.”
Public Employers: Rules and Exceptions
There are three categories of public employees who do not have the same free-speech rights as their counterparts elsewhere in government: individuals employed by the military, those employed in law enforcement or emergency services, and those employed by social service agencies.
In military circles, common terms used are “political neutrality” and “maintaining order and discipline.” Free-speech issues constitute a significant component of the Uniform Code of Military Justice (UCMJ), a 1950 law regarding conduct in the military. The UCMJ covers issues such as:
Holding political rallies on military bases,
Handing out pamphlets on base,
What kind of magazines can be sold on base, and
Whether or not military personnel are allowed to write letters to their congressional representatives or to the president.
Lawyers who specialize in UCMJ cases call it “lawyer porn” because the language is very dense and bureaucratic.
Individuals working in law enforcement or other first responders are subject to the principle of “political and religious neutrality.” That means they cannot wear religious symbols or political buttons on their uniforms; the fear is that the public may not trust the individual as much if they know their political leanings or religious views.
Other concepts applied to those in law enforcement include “public trust and reputation” and “witness credibility.” These terms are associated with a long history of cases in which law enforcement officers have been reprimanded or fired because of what they’ve posted on social media.
There have been some cases in which police officers have created YouTube or TikTok videos in which they explain some of the tricks they use to get around the rules involving excessive force and subduing suspects. When they find themselves in an excessive-force case, and they’re on the witness stand, a lawyer representing the suspect introduces the video as evidence. That’s why police departments claim they need the right to prohibit their officers from creating social media content.
Private Employers: Rules and Exceptions
While public employers justify limiting the speech of their employees for a variety of reasons, private employers don’t have to work as hard. Common reasons for limiting workplace speech include preventing workplace disruption (sometimes described as “promoting employee harmony”) and preventing speech that could lead to accusations of discrimination, harassment, defamation, or threats.
Under the National Labor Relations Act of 1935, employers cannot reprimand workers for any discussion of unionization (support for or opposition to) or good-faith criticism of workplace conditions, including safety issues, work schedules, compensation, or mandatory uniforms. Employers claim that much workplace speech that employees claim to be protected is actually related more to personal grievances, and the National Labor Relations Board and the courts allow them to make that “exception to the exception.”
While most private-sector companies limit workplace speech for the reasons listed above, others see value in not only allowing but also encouraging speech. The reasons behind that stance include fostering a healthy workplace culture, supporting employee retention and recruitment, and generating ideas for new products and services.
In terms of workplace culture, the “water-cooler rule” that allows employees to discuss politics, current events, and industry trends often results in a better workplace climate and increased productivity. In all three cases, however, employers have to watch out for speech that might expose them to charges of discrimination or harassment.
The Moving Target of Social Media
Employees in all fields are finding that the metaphor of the double-edged sword applies to them as well as their employers. On the positive side, platforms such as Facebook, X (formerly Twitter), and Instagram allow them to connect with like-minded co-workers who need to vent and, in some cases, find opportunities to move on to better jobs elsewhere. But venting, even when done anonymously, can have consequences, such as reprimands, demotions, or terminations.
Below is a list of some examples of controversial issues specific to some workplaces. All have been problematic for decades, but most have become more volatile due to social media, with more spikes observed during and since the COVID-19 pandemic.
Corporate workers complain about their bosses, co-workers, customers, job duties, working hours, and, in some cases, problems with their unions or lack of the opportunity to unionize.
Doctors and nurses use social media to complain about hospital management and issues in the insurance industry. During the COVID-19 pandemic in 2020-21, health care workers were found on both sides of the debates over masking and vaccine mandates, complaining that their employers were either not doing enough to keep them safe or doing too much, requiring measures they believed were unnecessary and interfered with patient care.
Workers in the restaurant industry complain about working hours, low pay, company-mandated uniforms, and customers who under-tip or leave no tip at all.
K-12 teachers vent about their students, their teaching schedules, the lack of support from administration, and interference from “helicopter parents.”
University professors use social media to complain about students who arrive at their institutions unprepared because of failing high schools. Other easy targets are their schools’ budgeting priorities and problems with the tenure system—comments that ironically contribute to the denial of tenure.
Even lawyers, who should theoretically “know better” when it comes to issues involving free speech, are not immune from employer sanctions when they complain about their clients or judges, prosecutors, and fellow attorneys in their jurisdiction.
In all of these fields, the old rule of “think before you speak” applies today in the form of “think before you email,” “think before you blog,” and “think before you post on social media.”
Technology-related problems are not limited to those created by social media; even simple email programs can cause issues. The most valuable function in any electronic mail platform is “save as draft,” while the most dangerous is “reply all.”
Social Media and Prospective Employees
The rule about “being careful what you post” applies not only to current employees but also to future ones. Since the dawn of social media, just after the turn of the century, employers have used search engines such as Google and Yahoo to conduct basic background checks on prospective employees. Today, numerous surveys indicate that a majority of employers include a search of a candidate’s social media history in their hiring decisions.
Red flags include photographs of individuals in provocative attire and/or engaged in excessive drinking or reckless behavior. As a result, career counselors at colleges and universities are warning students about entering the job market to clean up their social media profiles, including Facebook, Instagram, and TikTok. The discovery of embarrassing or poorly thought-out social media posts could limit a graduate’s interview opportunities—even if those posts are several years old.
“Do past tweets represent the person you are today? Most would say no,” wrote attorney John D. Winer in a 2018 article in Legal News. “But whatever you post online will stay online forever, and anything you might have said when you were young or because you were tweeting without using logic can and will come back to haunt you.”
The Role of the Public Relations Function
What is the role of the public relations staff in advising leaders about these issues? Here are five suggestions:
1) Advise leadership not to overreact.
The “72-hour test” says that when company leaders find their employees’ social media posts objectionable, before acting, they should ask themselves, “72 hours from now, will this really matter?” The audience for your employees’ social media posts is unlikely to be confused into thinking that what the employee says is also the employer's official position.
Company leaders should also remember the exceptions: Under the National Labor Relations Act, even private-sector employees are permitted to discuss work-related topics, including work hours, wages, mandatory uniforms, safety concerns, and matters related to unionization or union activity.
And then there are the exceptions to the exceptions: employers are not required to permit any potentially defamatory speech, an invasion of privacy, or the compromise of confidential business information.
2) Develop a social media policy.
The simplest form of a social media policy is one that only requires employees not to use company assets to engage in social media on their own time. It further states that employees may comment on issues unrelated to their job, the employer, or the industry without restriction.
However, if an employee wishes to comment on issues related to the company or industry, he or she must include a disclaimer stating that the opinion expressed is his or her own and does not represent the employer's official position. In the case of videos posted to YouTube, TikTok, or other video platforms, employees should be admonished not to wear company- or brand-logo clothing or display any company logos, signage, or recognizable property in the background.
A social media policy should also remind employees that media posts should not defame anyone, violate anyone's privacy, or release confidential information.
3) Consider social media monitoring.
Employers who detect a problem with employees’ use of Facebook or their personal blog posts may consider having their IT department implement a monitoring system.
Many experts contend that this should be undertaken only in extreme cases; the main drawback is that it creates an atmosphere of mistrust. There have been many recent cases in which employers began monitoring employees’ email and social media activity on a short-term basis to address specific issues, then reverted to a policy of not monitoring communication once the situation was resolved.
When email or social media monitoring is conducted on a long-term basis, the ethical approach is to notify all employees that their communications will be monitored and to advise new employees of the policy during the onboarding process.
4) Create a media interview policy.
Most organizations have policies requiring anyone outside of the public relations office to obtain permission from that office prior to being interviewed. The additional benefit of doing so is that the public relations office can provide the interviewee with further background information and/or media relations training or practice.
In cases in which employees are chosen because their expertise exceeds that of anyone in the public relations office (university professors are the best example), they should state at the beginning of the interview that their opinions are their own and do not reflect the official position of the employer.
5) Provide a “safe space” for employees to vent.
One of the best ways to improve communication is to provide official channels for employees to vent about working conditions. A section of the company’s internal website (not for public consumption) allows employees to report working conditions or other work-related matters without fear of retribution. Allowing employees to do so anonymously is optional.
If anonymity is not critical, employees may also consider organizing monthly focus groups to express opinions on work-related matters.
These ideas may not eliminate the vitriol that takes place under the radar, but they should tone it down.
Sources:
Women in the Workplace study conducted by LeanIn.org. Cited in: Jessica Gyunn, “Microaggressions Take A Major Toll.” USA Today, October 12, 2023, p, 1-B.
Bruce Barry, Speechless: The Erosion of Free Expression in the American Workplace. San Francisco: Berrett-Koehler Publishers (2007), p. 96.
Jennifer Jolly, “Grads, Clean Up That Social Media.” USA Today, June 6, 2022, p. 3-B.
John D. Winer, “Can My Ten-Year-Old Tween Get Me Fired?” Legal News, August 29, 2018. See also: Randy Bobbitt, Exploring Communication Ethics. New York: Taylor and Francis (2020), p. 271.
Randy Bobbit, Free Speech in the American Workplace: From the Dawn of Workers’ Rights to the Rise of Social Media. New York: Bloomsbury Academic, 2025.
