Anyone who’s ever set an old-fashioned mouse trap knows that delicate moment when you set the cheese on the trigger. If you’re not careful, the trap can snap shut on your fingers, a painful experience you won’t soon forget.
A television journalist in California recently experienced something like this—but much worse—when he posted on social media something he may have thought was a thoughtful observation and one that could get him some clicks.
He was commenting on the accusation against Supreme Court nominee Brett Kavanaugh that Kavanaugh had committed a sexual assault when he was a teenager. As part of a 400-word post, the journalist stated, “you are beyond dreaming if you think 17-year-old boys are not going to misbehave from time to time …”
The posting was filled with disclaimers and qualifications, but it didn’t matter. Within days, the journalist resigned under a flood of anger and outrage.
We all live in a social media world now where self-worth may derive from likes and shares and clicks. For journalists, it ascends to a whole other level. Nowadays, journalists are required to post and they are evaluated on the number of views their articles and postings get.
Many even have quotas: “Didn’t get your six million views this year? No raise for you.”
It puts journalists in a difficult and potentially career-ending conundrum. They must post, their posts must get lots of attention, and the posts likely to get the most attention deal with hot topics. But hot topics are hot because people have strong feelings about them that are likely to be aroused by whatever is posted. Such posts obviously need time and thought and care—commodities hard to come by for a journalist operating in a news stream that changes by the minute and never sleeps.
Keep in mind that news journalists, as opposed to columnists, are not supposed to advertise their opinions, particularly not on the subjects they cover. A writer cannot control what a reader may ascribe to his words, however. What for one reader is an objective account may be and often is another’s biased political hatchet job. The employer still has to deal with the consequences.
The television journalist touched what has become a deadly third rail. He resigned, which may have saved his employer the trouble of firing him.
This raises the question of when an employer may fire an employee for what the employee posts. When is it unfair? Could it even be illegal?
Put aside public employees, where the huge body of First Amendment law complicates things beyond belief. Most people, including journalists, work in the private sector.
Speech, including social media posts, made as part of the job is legitimately subject to the oversight and control of the employer. What a reporter writes in her capacity as a reporter reflects directly on the employer. It can cause sales (or clicks) to go down. It can get the employer sued.
Even when an employee’s speech isn’t strictly part of the job, the audience may reasonably regard the speech as reflecting on the employer. Imagine employees picketing outside their workplace while dressed in the employer’s uniforms. Imagine a news writer commenting on the news, even in a venue like his personal social media page. Can such speech ever be truly private?
Some speech is protected. Labor law protects speech related to the “mutual aid or protection” of groups of employees. Some employer action is prohibited. Civil rights laws prohibit firing employees in retaliation for opposing illegal discrimination in their workplace.
However, the law might not protect speech or prohibit employer actions if the action is taken for legitimate reasons. If that television journalist had not quit but had been fired, the employer might have justified it on the basis that his expressed views violated its policies or that they caused a decline in ratings and revenue. He could hardly be blamed for replying that the employer required him to post and now was blaming him for the result.
It’s a minefield and we’re all liable to be blown up no matter where we step. As tempting as it is to say that everyone should take a deep breath and calm down, that is just not the world we live in right now.
Right now, all of us have our fingers on the cheese in the mouse trap. And the trigger is trembling.
David C. Miller is a shareholder in the Miami office of Bryant Miller Olive. He is board-certified by the Florida Bar in labor and employment law and represents employers. Before becoming a lawyer, Miller was a newspaper editor and reporter for more than a decade.