Private businesses grapple with social media

Watch what happens when a business, organization or news outlet removes a user’s post from a Facebook page, website or comment string. “Censorship!” “You’re violating my free speech rights!” “You’re trashing the First Amendment!”

Well, no. None of that has happened. 

The laws around social media use and protected speech continue to evolve. Courts are beginning to make clear that public officials who set up social media sites for public business can’t then bar or block critics from commenting on those sites.

As the Washington Post reported in January, the U.S. Court of Appeals for the Fourth Circuit in Virginia unanimously ruled that an elected official violated the First Amendment when she temporarily blocked a constituent on Facebook — the first such ruling from an appeals court “to answer the question of whether free speech protections prevent public officials from barring critics from their social media feeds.”

Private business does not have those same First Amendment concerns. Put most simply, the First Amendment protects all of us from the government punishing or censoring speech. But it doesn’t apply to private organizations. Of course, that doesn’t make dealing with social media attacks or inappropriate social media posts by employees or others easy. 

“An employer can regulate an employee’s speech” and other speech on its website and social media sites, says Patrick Kabat, a First Amendment lawyer with the Chandra Law Firm in Cleveland. 

That, though, brings its own hazards, Kabat notes. Heavy-handed employers risk not keeping or attracting top talent by invoking what can be considered draconian limits on speech. And taking the heavy-handed approach frequently inflames social media wars, increasing the threat to an organization’s reputation. 

Cease and desist orders have their place, particularly for extreme situations involving social media critics. Best practices for crisis communications also have shown us, though, that other tactics can be equally effective, including reaching out to online critics to talk offline, immediately correcting misstatements of fact online, providing independent, corroborated information for facts about your organization or situation and avoiding pointless debates with online trolls. 

“The remedies are not always legal remedies,” Kabat says.

And the legal remedies don’t have to be so, well, legal. Consider how Netflix responded to news that a Chicago bar was hosting showings of its hit series “Stranger Things” without authorization. 

The attorney’s letter included language familiar to fans of the show — “Look, I don’t want you to think I’m a total wastoid, and I love how much you guys love the show” — while also telling the bar owners they needed permission. The letter ended, “We love our fans more than anything, but you should know the Demogorgon is not always as forgiving. So please don’t make us call your mom.”

Kabat, not surprisingly, places faith in the First Amendment and its free speech protections as the ultimate cure for the hateful and ugly speech that sometimes seems to dominate the internet. 

“The remedy for bad speech,” he says, paraphrasing U.S. Supreme Court Justice’s Louis Brandeis’ famous quote, “is more speech.”

Thomas Fladung is vice president at Hennes Communications.