This month’s Abridged features a cyclist getting fired for giving the middle finger to President Trump’s motorcade, the methods law enforcement uses to prevent violent clashes between white supremacists and anti-fascist counter-protesters, and a lawsuit concerning a serious case of cyber-harassment.
Today’s theme: Targeting Speech Without Targeting Content
After a media photograph of Juli Briskman giving the middle finger to Trump’s motorcade went viral, Briskman posted the photograph to her own Facebook and Twitter accounts. She informed her company, Akima, L.L.C., and was fired from her job as a marketing analyst. Akima, a private company, oversees government contracts. Briskman’s posts violated the company’s code of conduct, which bans obscene posts on social media, and her employer worried that her gesture would hurt business because of their government-contract work.
Since Briskman’s firing, a GoFundMe campaign has raised over $100,000, and people believe she was fired for exercising her First Amendment rights. The intersection between her First Amendment rights and her firing is quite complex, however.
Fundamentally, private employers are permitted to fire employees for speech that violates their policies. This is why Google fired James Damore, and why the National Football League is permitted to take action against those who refuse to stand during the National Anthem. (This may compromise free speech values, but is not a First Amendment violation.) However, Akima partially fired Briskman because the company was afraid of government retaliation, in the form of losing government contracts. This concern complicates matters.
If the government had terminated contracts with Akima for Briskman’s speech (either the middle finger gesture or her posting of it), that action might be a First Amendment violation. Termination of government contracts would be unconstitutional if the termination was motivated by Briskman’s speech on a matter of public concern, and the government did not have an adequate reason for treating the contractor’s speech differently than it would the speech of a member of the public. The government could argue that it is not targeting the viewpoint of the speech, or the public concern element, but simply the lewdness of the speech. Arguably, based on content, form, and context, Briskman’s gesture is not speech on a matter of public concern. The government has more leeway to make decisions about the speech of its contractors than it has to generally regulate the speech of citizens.
Further, the government has not actually terminated contacts with Akima, we assume, over Briskman’s speech. Instead, Akima fears future government termination – or nonacceptance – of contracts. Often, private parties go beyond what the law requires, and punish protected speech, out of fear of legal liability or government punishment. For example, private employers and universities often create speech and harassment policies that go beyond what Titles VI, VII, and IX require in terms of preventing discrimination and harassment in the workplace and university setting. These extra measures, designed to ward off even unmeritorious lawsuits that do not allege the level of workplace harassment required for legal liability, often cut into students’ and employees’ protected speech. However, unless federal or state statutes legally require these extra measures, the chilling of speech is attributable to private decisions and thus not generally protected by the First Amendment.
This is an unfortunate problem, and fear of legal liability or government action causes private parties to chill far more speech than the government is permitted to abridge. Our First Amendment standards are, in some ways, designed to avoid this problem – consider how defamation law protects even false speech against a public figure, so long as the false speech was not published with malice or reckless disregard for its falsity. However, private parties will continue to undermine our speech rights by over-regulating speech so long as even the threat of an unmeritorious lawsuit or impermissible government action causes the private party to feel significantly burdened.
Adding to the complexity of Briskman’s situation is the question of when speech is being targeted for its content, versus some other characteristic of the speech. Content- or viewpoint-based restrictions on speech are the least permissible government actions. The government is given greater latitude to regulate other characteristics of the speech, such as its time, place, and manner. Lewd gestures and words are protected, and bans on indecent speech are considered a content-based restriction on speech. Thus, bans on vulgarity have to be limited. For example, the Federal Communications Commission is permitted to ban indecent speech, but these bans must be limited to serving compelling interests, like protecting children.
Interestingly, when the government is not targeting speech’s viewpoint or content, a great deal of speech may be chilled. Police tactics to prevent violence at white supremacist rallies have created obstacles to gathering that prevent protesters, of the KKK and anti-racist variety alike, from marshalling their energies or effectively assembling. If these tactics become too burdensome in light of the government’s interest in preventing violence, however, they will be considered unconstitutional, even as a content-neutral restriction on speech.
Cyber-harassment is an important, interesting subset of speech where penalization sits in the border between content-based and content-neutral restrictions on speech. Criminalizing revenge porn, for example, does abridge speech based on its content – if the poster of the revenge porn rightfully possesses the speech. However, courts are willing to entertain civil and criminal actions for harassment, because the harm, which must be severe or pervasive for the harm to constitute harassment, is not as related to its content as, for example, the harm from offensive or hateful speech generally, where the harm is inextricably intertwined with the viewpoint expressed. The harm from harassment often comes from the fact that its continued or threatening nature inspires fear in the target and is, indeed, intended to create that fear or distress. There are First Amendment limits on speech that causes intentional infliction of emotional distress or invades privacy, but these limits are less robust when the intrusion targets a private figure or does not express speech on a matter of public concern.