The First Amendment of Social Media: Freedom of Tweet

The First Amendment to the U.S. Constitution guarantees freedom of expression from government interference. While it is within our right to say what we think without fear of prosecution from our Government, freedom of expression in social networks however, is something altogether different. In the court of public opinion, your words can and will be used against you. But what works against us, also works for us.

While the egosystem is seemingly rife with unintelligible chatter, it is, in and of itself, revealing a new direction for our culture and society.  In this brave new world of altruism and self actualization, the lines that divide offline and online personae and experiences blur into one real-time, real world lifeway. Indeed, the impact of social and mobile technology is profound. As a result, human behavior has diverted towards a very public genre of expression, discovery, and extroversion, and packaged in brevity and frequency.

We are beguiled by this new found freedom of speech, sharing a communal desire to find our voice, protected by a false sense of security. The statusphere and blogsphere are rich with perpetual observations and declarations, but we lose something in translation. While content was once king, in social media, where character and word count is precious, context ascends to the top of the ranks. In short form, context is elusive and in order to convey intent and desired outcomes, one must master the art and science of storytelling and influence. We must realize that what we think we’re saying might not convey as desired. There’s a difference between what we say and what is heard. And now with social media, intention is often eclipsed by abbreviation.

#IAmSpartacus

27-year old accountant Paul Chambers learned about context and character the hard way recently when he tested his Freedom of Tweet. In January 2010, Chambers Tweeted, “”Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”

He was later convicted and fined. In November 2010, he lost his appeal. What was intended as a joke, in hindsight, is now vividly clear to see just how things can be taken out of context – especially on Twitter. Yes, his Tweet was in poor taste. His action was the catalyst for a national example of prudence. But, the Twitter community stood by Chambers and their Freedom of Tweet by uniting under the hashtag #IAmSpartacus upon learning his appeal was lost.  With homage to the film, Spartacus’s fellow gladiators demonstrated unanimity by declaring, “I am Spartacus.” Twitter denizens showed solidarity with Chambers by repeating his Tweet to the point of topping the Trends in Twitter for an entire day.  While many stand united on Twitter, the reality is that Chambers lost his job and still faces conviction and a significant legal bill.

Judge Jacqueline Davies said of the Tweet “It’s menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.”

Context vs. Intention

A Rude Awakening

Inner monologue and filters usually prevent us from uttering words that could haunt us or worse, harm us. Social Media erode these filters enticing us to share in public what might be better shared with discretion. Perhaps our screens shroud us in a protective light.

Either way, there is no shortage of stories where students are dismissed as candidates based on what college admissions officers discover on social networks. Accordingly, job candidates also lose opportunities without realization as HR managers discredit them based on what they share in social media. We’ve also read many stories where employees are fired for lambasting customers or  bashing management.

Our digital shadows work for and against us. When it comes to matters of education and employment, perhaps it is not wise to test our Freedom of Tweet unless it is advantageous to do so. In a groundbreaking case however, we see that the First Amendment of Social Media may in fact, officially take shape.  An employee who criticized her employer on Facebook was recently fired for doing so. Now the National Labor Relations Board accused American Media Response of illegally firing her.

According to the National Labor Board, Social Media are essentially digital water coolers. Acting General Counsel Lafe Solomon expounded, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”

This landmark case will serve as precedent for the coming flood of cases to consume courts.

While common sense is uncommon, it seems that in this case, at least employees are covered even if judgment lapses. The National Labor Relations Act gives workers a federally protected right to form unions and it prohibits the punishment of workers for discussing working conditions or unionization.

This significant move by the NLB triggered a “lawflash” by Morgan, Lewis & Bockius, a law firm with a large labor and employment practice representing hundreds of companies, “Employers should review their Internet and social media policies to determine whether they are susceptible to an allegation that the policy would ‘reasonably tend to chill employees’ in the exercise of their rights to discuss wages, working conditions and unionization.”

In case you glossed over the above paragraph, it essentially says that your social media policy might open up the organization to potential complaints, suits, and liabilities.

With Social Media Comes Great Responsibility

Yes, social media is the democratization of information. We’re inspired to express ourselves and are rewarded every time we share a bit of who we are and what moves us with the recognition and validation of response and connection. But with this new voice and platform, we must also embrace a more informed era of consciousness. Now more than ever, vigilance becomes a virtue. While this so-called First Amendment of Social Media is written and tested in real time, it is up to us to say and do the things that share not only who we are, but also who we want to be personally and professionally.

I Tweet, therefore I am…protected?

Connect with Brian Solis on Twitter, LinkedIn, Tumblr, Facebook
___
If you’re looking for a way to FIND answers in social media, consider Engage!: It will help


___
Get Putting the Public Back in Public Relations and The Conversation Prism:


___
Image Credit: Shutterstock

Share
  • http://www.thelettertwo.com Ken Yeung

    Great post, but it’s led me to offer a few points of possible contention…

    First of all, the fact that Paul Chambers has published his infamous tweet that has gotten him into professional AND legal trouble is not something that can entirely be explained away by “I’m protected under the First Amendment” because, while I’m not a lawyer (and that’s important to know), surely you can’t yell “FIRE” in a crowded theatre and expect to be protected under the law when someone dies. If you can’t yell “bomb” on a plane, then what possible excuse is there to do it in a tweet where there’s a vacuum of emotions and personality – we can’t always tell whether people are being serious, sarcastic, crazy or actually just desperate for attention. Yes, the police/federal agencies could have done a much more thorough investigation, but I think that it’s better that they did what they did to make sure that Chambers wasn’t a lunatic…you can tweet whatever you want, but don’t go nuts and tweet something that will surely get you into trouble and claim First Amendment privileges. It’s not absolute.

    As for a social media policy, I think this is an on-going debate…because quite frankly, I find it very hypocritical of companies to say they embrace social media and then fire people who talk negatively about their company. Okay, I don’t believe what I said 100% because you have to include the term “technically”. It’s not black and white. Sure, companies should understand that social media opens them up to the world and allows communication and dialogue, but should trust their employees to interact and engage with customers and the world. In turn, it’s the employee’s expectation and responsibility to behave like a true professional and use their common sense. Just because there’s social media doesn’t mean that you air out your dirty laundry and hope that no one of interest will care, because one way or another, people will find it and get the information – your data is NOT safe online…

    While you say the First Amendment of social media is the freedom to Tweet, I think that there should be an understanding that with more published information online via tweets, photos, videos, posts, etc, that there are people just chomping at the bits waiting to find that one negative thing and then pounce on it. We’re not about engaging conversations…it’s now stalking the conversation.

    • Dave

      I see your point, but I think you’re wrong. Our freedom of speech exists for a reason, and any effort to quell it should be challenged at every opportunity. Chamber’s didn’t yell “fire” or “bomb” – he vented his frustration in an open, traceable, public forum. The airport was closed. There were, presumably, no crowds to panic. No risk of stampede. Should the “threat” have been investigated? Yes. Should the guy have been prosecuted? No! I have to wonder if the judge really read the the tweet or just looked at the words. Did she even try to understand the tone as well as she claimed to understand the content? Perhaps I’m not an “ordinary” person, as she suggested, but it didn’t phase me at all. It was asinine, but hardly threatening.

      If we consign ourselves to always hiding our true feelings and creeping around in the dead of night to bury our passions and convictions, we don’t deserve the freedoms so many have fought and died for. Open and honest communication is key to any progressive society and any unreasoned attempt to stifle an individuals right to express themselves is far more foolish and destructive than any employee comment or “destructive” expression of frustration.

      If anything, you should want to hear what your staff has to say so you can better manage your business. Would you rather them stay quiet while everything goes down the drain? How is Chambers rant against an airport that different from someone burning a flag? Would I do it? No. But I would argue his right to say what he wants to say unless the law can offer a compelling reason that he shouldn’t – and I don’t believe that was done in his case.

      To me, his comments were no more out of line than the lyrics of certain music or the content of any number of video games and movies. Yet these expressions of violence and horror are protected, but his handful of words are a crime? Is this vigilance, or cowardice?

    • http://yuhongbao.blogspot.com/ Yuhong Bao

      “because quite frankly, I find it very hypocritical of companies to say they embrace social media and then fire people who talk negatively about their company.”
      Well, I would not go that far, but yes IMO direct response is much better.

  • http://twitter.com/AntonioTedesco Antonio Tedesco

    If you are a student or job candidate, the onus is one you to manage your online reputation. Mange you privacy settings so keg stand photos aren’t the top search results. Also, blog and maintain your professional profile on LinkedIn so the good press is at the top.

  • http://flavors.me/40deuce 40deuce

    I’ve been following both the cases you’ve spoken about and I find them quite interesting. While I don’t know what an appropriate way to go about dealing with some of these things would be, I thought I’d throw in my two cents…

    I’m coming at this from my personal perspective on social media, so it may be different than most peoples, but that’s ok.

    First, that whole “first amendment” thing is great to claim… but only if you’re american. I’m a Canadian. If I tried to get away with saying, “well, the first amendment gives me the right to say that,” I’d just get laughed. I know that you’re based in the US Brian, but social media is a world-wide thing, so that rule doesn’t apply to most of us.

    Secondly, in regards to the cases you discussed above I have a few thoughts. I personally use Twitter and Facebook very differently. Twitter is a network where I’m open to the world. Anyone can follow me and watch anything I say. However, Facebook I use just to stay in touch with real friends. I don’t add business contacts or people who I may have ran into once at an event. It’s strictly for my friends and I have the privacy settings on so that only my friends can see what I do there. For that reason, I would say that I feel more comfortable saying something that may be deemed negative there (although I’ve never said anything bad about my employeer… I swear).
    I think a lot of people look at Facebook somewhat the same way. It’s more of a private area than another social network like Twitter. Facebook is a place where I can say things, and although it’s semi-public, I don’t feel like I’m broadcasting to the world. I wouldn’t want someone like my employeer “spying” on me there. On the other side Twitter is a much more public venue. Most Twitter users don’t have any privacy set to their accounts and everything they say can be seen by anyone in the world. Somewhere like here I think that people need to exercise a little common sense. When you post to Twitter, although you’re sitting alone at a desk or what have you, you’re still on display for the whole world. You have to think, “would I say that in front of my bosses face?” or “would I say that on international TV for the whole world to see?”

    I think that people need to understand what each of the social networks really is and how they work before they just start blurting out things. The world we currently live in is much different than it was even 10 years ago. Everything we type is permanent and we need to start remembering that and adapting to it.

    I’m not saying that we should always be wary of what we’re saying, but I think sometimes people could stand to be a bit smarter about it.

    Would I say in front of my boss that I hate his face? No. But would I say it in front of my friends? Maybe.
    Would I yell out bomb in an airport where everyone can hear? No. But would I do it in a much more private place where people know I’m joking? Maybe.
    There’s a big difference in both of these places in real life and the internet is the same.

    That’s my thoughts on all this anyways.

    Cheers,
    Sheldon, community manager for Sysomos

    • http://twitter.com/TyWest Tyler E. West

      Sorry to burst your bubble but there are federally mandated exceptions to most constitutionally-guaranteed rights in America these days.

  • http://twitter.com/PR_in_Pink Krista Poplau

    Great post, Brian–this calls attention to the gray area of social media expression as it trickles into people’s real lives and into the workplace. I agree with must of the previous posts that there are plenty of points of contention on these issues. I know have a differing point of view from HR because of my perspective in corporate communications. That’s what most of this boils down to–what perspective you are viewing these communications tools from and who ulitmately makes the rules/laws to “govern” them.

    The sad fact is that common sense often does not win out in many cases. People forget that their words and actions are public even through their personal networks and social media interactions. My employer could be reading my comment to this post as we speak! Does that mean I should self-censor my thoughts and opinions as they contribute to a valid discussion? Maybe I wouldn’t, but someone else in a similar situation might do so. The resposibility lies within the individual but as rules and regulations are passed, it may slowly erode at the core of those expressions. Interesting food for thought…

  • http://chrisjohnstonphotography.com Chris Johnston

    I think far too many people fail to grasp how long this information will live after they post it. The Library of Congress is archiving tweets. While it may be the modern day or digital version of the water cooler what you said at the water cooler ended there, HR couldn’t go back and search a database of water cooler comments at your next performance review. I now tend to think long and hard about times when I want to vent on Twitter or even Facebook (and I have tweaked my privacy settings). I think this will just be another thing that people will need to learn to live with, like surveillance cameras in the workplace.

  • http://twitter.com/PriorityPR Priority PR

    I’m torn over this one. Although I agree that there shouldn’t be a big government clamping down on Tweet content, the case with Paul Chambers is frustrating. Firstly, I don’t really see what is funny about saying you will blow up a airport (although this is a matter of taste so I shouldn’t really say that) and secondly, don’t we all know that there are certain ‘no go areas?’

    If Paul Chambers was doing a standup comedy show I doubt that anyone would really complain. But he was an unknown person shooting out a angry Tweet threatening to blow up an airport. If social media is more about the conversation than the tools of which it uses (in this case, Twitter) then we must be judged the same was as he had said that in person, in the real world?

    Yes the First Amendment protects US citizens from government interference, but that is no excuse to abandon common sense. Just because you CAN doesn’t mean you SHOULD.

    That said, I think the government made a right ol’ hash of it. It would of been better for them to express that although they can’t stop people from saying ‘jokes’ like this, people should understand that they have to take these things seriously so ‘please don’t joke about blowing up airports because we will have to investigate.’

  • http://twitter.com/TyWest Tyler E. West

    The story you cite in your post has more to do with the machinations of our Federal Mafia than any sane interpretation of our 1st Amendment in the context of social media. I agree with Dave, the poster below, who says “Our freedom of speech exists for a reason, and any effort to quell it should be challenged at every opportunity.” Protecting our freedoms is the duty of every man woman and child in the States, not just our men at arms.

  • http://twitter.com/TyWest Tyler E. West

    The story you cite in your post has more to do with the machinations of our Federal Mafia than any sane interpretation of our 1st Amendment in the context of social media. I agree with Dave, the poster below, who says “Our freedom of speech exists for a reason, and any effort to quell it should be challenged at every opportunity.” Protecting our freedoms is the duty of every man woman and child in the States, not just our men at arms.

  • http://twitter.com/TyWest Tyler E. West

    The story you cite in your post has more to do with the machinations of our Federal Mafia than any sane interpretation of our 1st Amendment in the context of social media. I agree with Dave, the poster below, who says “Our freedom of speech exists for a reason, and any effort to quell it should be challenged at every opportunity.” Protecting our freedoms is the duty of every man woman and child in the States, not just our men at arms.

  • http://twitter.com/TyWest Tyler E. West

    By the way, the next time I hear the “Fire in the crowded room” comment I’m going to digitally punch the poster in the face.

  • http://twitter.com/TyWest Tyler E. West

    By the way, the next time I hear the “Fire in the crowded room” comment I’m going to digitally punch the poster in the face.

  • http://twitter.com/TyWest Tyler E. West

    By the way, the next time I hear the “Fire in the crowded room” comment I’m going to digitally punch the poster in the face.

  • http://twitter.com/deannie Deanna McNeil

    Excellent commentary on this legal aspect where folks are treading what seem to be gray areas. I appreciated your turn of words when describing both the ‘egosystem’ and ‘statusphere’. This is exactly what gets us in trouble, no? Our asserting that something is “my right” instead of first considering the repercussions of the words uttered. Whether it is in our private lives or public ones, the words we say can inflict wounds like a stab and even if we remove the knife, the bleeding injury is there. Context as well as content have always mattered.

  • http://twitter.com/mikulaja Jason Mikula

    I see that others have already expounded on this point below, so I’ll make my point quick-

    While the First Amendment guarantees freedom of speech (or specifically, guarantees that Congress will make no law abridging freedom of speech), that right is not absolute.

    Ken pointed out the popular misquoting of Oliver Wendell Holmes Jr.’s quote from Schenck vs. United States (should read “FALSELY shouting fire in a crowded theater”.)

    In the case quoted, Schenck was suing the U.S. for abridging his freedom of speech because he was arrested for posting anti-draft literature during World War I. The verdict in Schenck vs. United States? The court ruled unanimously AGAINST Schenck and for the U.S., arguing that Schenck’s action posed a “clear and present danger”.

    Of course, this case was overturned by 1969′s Brandenburg vs. Ohio (the current precedent on this matter) – that case found the government cannot punish inflammatory speech unless it is directed to incite IMMINENT lawless action.

    Is this the case for our Twitterer? Doubt it. But we live in a post-9/11 world.

  • http://www.magnet4marketing.net Fabrizio Van Marciano

    Interesting post, great insight thanks for posting.

  • http://www.ann-sense.com/ Ann Marie van den Hurk, APR

    Social media is exposing the gray area of freedom of speech. Nothing is completely private and 140-characters can often be taken out of context. And we also leave a digital footprint. We need to be mindful of what we say and where we say it until the legal and employment areas have caught up with social media.

  • http://scottmonty.com scottmonty

    One thing I think many people – including those who banded together to support Paul Chambers – are forgetting is that at the end of the film, rather than just punish Spartacus, the Roman legions crucified the entire slave population involved in the revolt. :-/

  • http://scottmonty.com scottmonty

    One thing I think many people – including those who banded together to support Paul Chambers – are forgetting is that at the end of the film, rather than just punish Spartacus, the Roman legions crucified the entire slave population involved in the revolt. :-/

  • Pingback: From Social Graph to Interest Graph: Twitter Tells You Who to Follow

  • Pingback: From Social Graph to Interest Graph: Twitter Tells You Who to Follow | Constellation Research

  • http://thesocialjoint.com/ Lucretia M Pruitt

    “We must realize that what we think we’re saying might not convey as desired. There’s a difference between what we say and what is heard.”

    It does not surprise me much that the tweet I wrote that got the most response and discussion this week was on the difference between ‘imply’ and ‘infer’… Sometimes language stands in the way of expressing our real intent. Unfortunately, we are now in the land of “no, you said X, so you clearly *meant* Y” culpability.

    Social media will have one of the biggest impacts on language of any event in the last few centuries. It’s the 21st century equivalent of the Gutenberg press.

    • http://www.briansolis.com briansolis

      Lucretia, exactly. Very well put. Be mindful…write for what you want people to hear…take the extra steps in an exchange where context is precious.

    • http://www.briansolis.com briansolis

      Lucretia, exactly. Very well put. Be mindful…write for what you want people to hear…take the extra steps in an exchange where context is precious.

  • Pingback: Manic Monday for Nov 22: Five Great Posts from Last Week | Jason Mikula

  • Pingback: The First Amendment of Social Media: Freedom of Tweet « ConvertusCorp

  • http://womeninbusinessradio.com Michele Price

    WOW, ok I lose it sometimes and want to say thing via twitter but even I know you can NOT make a bomb threat and expect to be protected by first amendment joke or no joke.

    Two, man we need to lighten up folks. Whether it is archived by library of congress or not, how about we stop being so either /or all the time. It is as simple as asking “What was your intention as I am not sure?”

    Three, it is very hypocritical for companies to say they embrace social media then not realize if there are any bad feelings inside their walls _THEY NEED TO KNOW _ and then be proactive to find a solution. Firing someone only makes me think you have something to hide and if that’s how you treat your employees then how will you treat me a customer.

  • Pingback: The Internet Does Not Grant You Entitlement Over People | The Digital Letter - Official Blog of Kenneth Yeung + TheLetterTwo.com

ABOUT ME

Brian Solis is principal at Altimeter Group, a research firm focused on disruptive technology. A digital analyst, anthropologist, and futurist, Solis has studied and influenced the effects of emerging technology on business, marketing, and culture. Solis is also globally recognized as one of the most prominent thought leaders and published authors in new media. His new book, What's the Future of Business (WTF), explores the landscape of connected consumerism and how business and customer relationships unfold and flourish in four distinct moments of truth. His previous book, The End of Business as Usual, explores the emergence of Generation-C, a new generation of customers and employees and how businesses must adapt to reach them. Prior to End of Business, Solis released Engage, which is regarded as the industry reference guide for businesses to market, sell and service in the social web.

Contact Brian

RECENT TWEETS

FLICKR FEED

  • Brian Solis, Caterpillar Innovation Summit, Nashville
  • Brian Solis, Caterpillar Innovation Summit, Nashville
  • Brian Solis, Caterpillar Innovation Summit, Nashville
  • Brian Solis, Caterpillar Innovation Summit, Nashville

ARCHIVE