Facebook, freedom and thin-skinned bosses

By Bruce Barry, Special to CNN

November 11, 2010 -- Updated 1434 GMT (2234 HKT)

STORY HIGHLIGHTS

• Bruce Barry: Losing private-sector job over a Facebook remark doesn't violate freedom of speech
• Employers shouldn't view offhand remarks on Facebook as threats, he writes
• Barry: National Labor Relations Board says comments may be protected under labor law
• Workers shouldn't forfeit rights, he says, and thin-skinned bosses can scare away talent

Editor's note: Bruce Barry is professor of management and sociology at Vanderbilt University and author of "Speechless: The Erosion of Free Expression in the American Workplace" (Berrett-Koehler, 2007).

Nashville, Tennessee (CNN) -- The recent news item about a Connecticut worker fired for Facebook postings that annoyed her employer, like other accounts of employees sacked for private speech, was bound to draw a lot of attention. Americans hold First Amendment rights to free speech as a kind of sacrosanct birthright, and for many of us the idea that you can lose your job for expressing private thoughts away from work offends the core principle of freedom of expression.

In fact, though, firing a worker for off-the-job speech that unsettles an employer is pretty routine, and for the most part very legal. The First Amendment and the rest of the Bill of Rights protect us from infringements on our liberties by acts of government, not from the oppressive acts of nongovernmental actors such as private-sector employers.

Combine that with the labor law concept of "employment at will," which makes it possible to fire someone without due process for just about anything short of discrimination, and you are left with an American workplace where free expression has scarcely more moral credibility than employee theft. A particularly eye-catching example is an Alabama woman who lost her job -- with no legal recourse -- during the 2004 election season because her Republican boss didn't like the John Kerry bumper sticker on her car in the factory parking lot.

Widespread use by just about everyone of online networks and social media opens new opportunities for workers to engage in personal expressive activity that might arouse the notice and disapproval of one's employer, and by extension opportunities for touchy or paranoid employers to police and punish essentially harmless extracurricular speech.

So in a sense, the situation involving Dawnmarie Souza, the Connecticut emergency medical technician fired by an ambulance services firm for posting negative comments about her boss on Facebook, is just the latest skirmish in an ongoing conflict between employers' desire to keep workers in line and the rights of employees to live their private expressive lives without unwarranted employer interference.

Holding a job should not require giving up your right to an expressive private life.
--Bruce Barry

Fired for Facebook?

Dare to trash your boss on Facebook?

RELATED TOPICS

• Facebook Inc.
• First Amendment Rights
• U.S. National Labor Relations Board
• Labor Law

But there's a wrinkle that makes this case important: the involvement of the National Labor Relations Board (NLRB), which contends that Souza's Facebook comments could be protected activity under labor law. Americans don't enjoy general free speech protections against infringement by a private employer (with some limited exceptions, such as certain kinds of whistle-blowing). But federal labor law does grant union-eligible workers the right to engage in "concerted activity" for the purpose of "mutual aid or protection" -- essentially, to communicate with each other about working conditions and terms of employment. Those same federal laws bar employers from interfering with workers' efforts to improve their work situations.

If Souza had dissed her boss in, say, a blog post or a letter to the editor, her expressive act would likely earn no protection against her employer's wrath. But on Facebook her comments catalyzed responses from and interaction with some of her co-workers. That online "conversation" involving Souza and other employees of the same firm is what the NLRB alleges could amount to protected concerted activity. If the courts agree (at this point it's just a charge by the NLRB, with a hearing slated for early next year) then Souza's dismissal was illegal.

When this case does reach a courtroom, lawyers will tussle over the nature of social media sites. Does interaction within a closed Facebook circle of friends amount to private conversation, or are negative comments about one's job or boss on Facebook the equivalent of a public statement that could affect a firm's reputation? Does it matter how big one's network is? How many co-workers have to chime in to the conversation to make it "concerted" activity?

Until this works its way through the courts, employment lawyers are advising corporate clients to ensure that employee policies regarding internet use are not written so broadly that they chill workers' exercise of their associational rights under labor law.

Souza's situation turns more on labor law protections than on constitutional free-speech rights because she worked for a private-sector employer. The First Amendment does afford more protection to public-sector workers, but government employees reading this shouldn't get their hopes up. Federal court decisions along with developments in management practice have combined to make even the public-sector workplace rather inhospitable to employee free-speech claims.

Consider the cautionary tale of Ashley Payne, a Georgia public school teacher forced to resign last year when administrators learned in an anonymous email about pictures of her on Facebook holding an alcoholic beverage during a trip to Europe. According to the Atlanta Journal-Constitution, Payne kept her network settings private, and never friended any students. A year later, as her case crawls through the legal system and she awaits her day in court, Payne is still unable to find a teaching position.

A common reaction among working professionals to stories such as Souza's and Payne's is to advise people to manage their online presence and their digital footprints more carefully and prudently. Avoid giving your employer a reason to frown on your online expressive activity, goes the argument, even when you do it on your own time, on your own device, and on private networks. This is reasonable advice to the extent that it equates to "avoid being really stupid," but it's unfortunate advice if it counsels individuals to suppress their own private expressive life as a career strategy.

To be sure, employers need not tolerate any and all extracurricular speech by workers that might genuinely pose a legitimate threat to the firm's interests or to its workplace harmony. If I worked for CNN, with a spare-time hobby maintaining the web site timewarnerisevil.com, it certainly shouldn't behoove my employer to retain my services in the name of some abstract notion of off-work freedom of personal expression. Employers need not allow workplaces to become debating societies or free-for-alls for hostility and harassment.

But it's troublesome when employers favor a management culture so bent on predictability and control that even mild or tangential departures from expressive conformity are treated with suspicion and rebuke. Employees will kvetch about jobs and bosses until the day there no longer are jobs and bosses, and enlightened employers understand that new technological vehicles for said kvetching will inevitable emerge and evolve.

Holding a job should not require giving up your right to an expressive private life, even if you might be prone to the occasional untoward remark about the people who sign your paycheck. Cultivating a thin-skinned managerial impulse to treat workers' expressive activities as existential threats to the enterprise isn't how you manage a workforce; it's how you chase talent away to your competitors.

The opinions expressed in this commentary are solely those of Bruce Barry.

The Story of My Shoe by Muntadhar al-Zaidi

Muntadhar al-Zaidi, the Iraqi who threw his shoe at George Bush gave this speech on his recent release.

In the name of God, the most gracious and most merciful.

Here I am, free. But my country is still a prisoner of war.

Firstly, I give my thanks and my regards to everyone who stood beside me, whether inside my country, in the Islamic world, in the free world. There has been a lot of talk about the action and about the person who took it, and about the hero and the heroic act, and the symbol and the symbolic act.

But, simply, I answer: What compelled me to confront is the injustice that befell my people, and how the occupation wanted to humiliate my homeland by putting it under its boot.

And how it wanted to crush the skulls of (the homeland’s) sons under its boots, whether sheikhs, women, children or men. And during the past few years, more than a million martyrs fell by the bullets of the occupation and the country is now filled with more than 5 million orphans, a million widows and hundreds of thousands of maimed. And many millions of homeless because of displacement inside and outside the country.

We used to be a nation in which the Arab would share with the Turkman and the Kurd and the Assyrian and the Sabean and the Yazid his daily bread. And the Shiite would pray with the Sunni in one line. And the Muslim would celebrate with the Christian the birthday of Christ, may peace be upon him. And despite the fact that we shared hunger under sanctions for more than 10 years, for more than a decade.

Our patience and our solidarity did not make us forget the oppression. Until we were invaded by the illusion of liberation that some had. (The occupation) divided one brother from another, one neighbor from another, and the son from his uncle. It turned our homes into never-ending funeral tents. And our graveyards spread into parks and roadsides. It is a plague. It is the occupation that is killing us, that is violating the houses of worship and the sanctity of our homes and that is throwing thousands daily into makeshift prisons.

I am not a hero, and I admit that. But I have a point of view and I have a stance. It humiliated me to see my country humiliated. And to see my Baghdad burned. And my people being killed. Thousands of tragic pictures remained in my head, and this weighs on me every day and pushes me toward the righteous path, the path of confrontation, the path of rejecting injustice, deceit and duplicity. It deprived me of a good night’s sleep.

Dozens, no, hundreds, of images of massacres that would turn the hair of a newborn white used to bring tears to my eyes and wound me. The scandal of Abu Ghraib. The massacre of Fallujah, Najaf, Haditha, Sadr City, Basra, Diyala, Mosul, Tal Afar, and every inch of our wounded land. In the past years, I traveled through my burning land and saw with my own eyes the pain of the victims, and hear with my own ears the screams of the bereaved and the orphans. And a feeling of shame haunted me like an ugly name because I was powerless.

And as soon as I finished my professional duties in reporting the daily tragedies of the Iraqis, and while I washed away the remains of the debris of the ruined Iraqi houses, or the traces of the blood of victims that stained my clothes, I would clench my teeth and make a pledge to our victims, a pledge of vengeance.

The opportunity came, and I took it.

I took it out of loyalty to every drop of innocent blood that has been shed through the occupation or because of it, every scream of a bereaved mother, every moan of an orphan, the sorrow of a rape victim, the teardrop of an orphan.

I say to those who reproach me: Do you know how many broken homes that shoe that I threw had entered because of the occupation? How many times it had trodden over the blood of innocent victims? And how many times it had entered homes in which free Iraqi women and their sanctity had been violated? Maybe that shoe was the appropriate response when all values were violated.

When I threw the shoe in the face of the criminal, Bush, I wanted to express my rejection of his lies, his occupation of my country, my rejection of his killing my people. My rejection of his plundering the wealth of my country, and destroying its infrastructure. And casting out its sons into a diaspora.

After six years of humiliation, of indignity, of killing and violations of sanctity, and desecration of houses of worship, the killer comes, boasting, bragging about victory and democracy. He came to say goodbye to his victims and wanted flowers in response.

Put simply, that was my flower to the occupier, and to all who are in league with him, whether by spreading lies or taking action, before the occupation or after.

I wanted to defend the honor of my profession and suppressed patriotism on the day the country was violated and its high honor lost. Some say: Why didn’t he ask Bush an embarrassing question at the press conference, to shame him? And now I will answer you, journalists. How can I ask Bush when we were ordered to ask no questions before the press conference began, but only to cover the event. It was prohibited for any person to question Bush.

And in regard to professionalism: The professionalism mourned by some under the auspices of the occupation should not have a voice louder than the voice of patriotism. And if patriotism were to speak out, then professionalism should be allied with it.

I take this opportunity: If I have wronged journalism without intention, because of the professional embarrassment I caused the establishment, I wish to apologize to you for any embarrassment I may have caused those establishments. All that I meant to do was express with a living conscience the feelings of a citizen who sees his homeland desecrated every day.

History mentions many stories where professionalism was also compromised at the hands of American policymakers, whether in the assassination attempt against Fidel Castro by booby-trapping a TV camera that CIA agents posing as journalists from Cuban TV were carrying, or what they did in the Iraqi war by deceiving the general public about what was happening. And there are many other examples that I won’t get into here.

But what I would like to call your attention to is that these suspicious agencies — the American intelligence and its other agencies and those that follow them — will not spare any effort to track me down (because I am) a rebel opposed to their occupation. They will try to kill me or neutralize me, and I call the attention of those who are close to me to the traps that these agencies will set up to capture or kill me in various ways, physically, socially or professionally.

And at the time that the Iraqi prime minister came out on satellite channels to say that he didn’t sleep until he had checked in on my safety, and that I had found a bed and a blanket, even as he spoke I was being tortured with the most horrific methods: electric shocks, getting hit with cables, getting hit with metal rods, and all this in the backyard of the place where the press conference was held. And the conference was still going on and I could hear the voices of the people in it. And maybe they, too, could hear my screams and moans.

In the morning, I was left in the cold of winter, tied up after they soaked me in water at dawn. And I apologize for Mr. Maliki for keeping the truth from the people. I will speak later, giving names of the people who were involved in torturing me, and some of them were high-ranking officials in the government and in the army.

I didn’t do this so my name would enter history or for material gains. All I wanted was to defend my country, and that is a legitimate cause confirmed by international laws and divine rights. I wanted to defend a country, an ancient civilization that has been desecrated, and I am sure that history — especially in America — will state how the American occupation was able to subjugate Iraq and Iraqis, until its submission.

They will boast about the deceit and the means they used in order to gain their objective. It is not strange, not much different from what happened to the Native Americans at the hands of colonialists. Here I say to them (the occupiers) and to all who follow their steps, and all those who support them and spoke up for their cause: Never.

Because we are a people who would rather die than face humiliation.

And, lastly, I say that I am independent. I am not a member of any politicalparty, something that was said during torture — one time that I’m far-right, another that I’m a leftist. I am independent of any political party, and my future efforts will be in civil service to my people and to any who need it, without waging any political wars, as some said that I would.

My efforts will be toward providing care for widows and orphans, and all those whose lives were damaged by the occupation. I pray for mercy upon the souls of the martyrs who fell in wounded Iraq, and for shame upon those who occupied Iraq and everyone who assisted them in their abominable acts. And I pray for peace upon those who are in their graves, and those who are oppressed with the chains of imprisonment. And peace be upon you who are patient and looking to God for release.

And to my beloved country I say: If the night of injustice is prolonged, it will not stop the rising of a sun and it will be the sun of freedom.

One last word. I say to the government: It is a trust that I carry from my fellow detainees. They said, ‘Muntadhar, if you get out, tell of our plight to the omnipotent powers’ — I know that only God is omnipotent and I pray to Him — ‘remind them that there are dozens, hundreds, of victims rotting in prisons because of an informant’s word.’

They have been there for years, they have not been charged or tried.

They’ve only been snatched up from the streets and put into these prisons. And now, in front of you, and in the presence of God, I hope they can hear me or see me. I have now made good on my promise of reminding the government and the officials and the politicians to look into what’s happening inside the prisons. The injustice that’s caused by the delay in the judicial system.

Thank you. And may God’s peace be upon you

The translation is by McClatchy’s special correspondent, Sahar Issa.

Constitution Party of Minnesota Supports the Hauser Family

We live in a Constitutional Republic founded on personal freedom and
responsibility. The Declaration of Independence focused on rights granted
to individuals by our Creator, and the Constitution that formed our
government outlined specific limitations on how those rights and freedoms
were to be protected. We now have a government that is infringing on
those rights and freedoms at every turn. The latest example is the New
Ulm, MN court ruling against Colleen Hauser and how she and her family
Choose to raise their son and receive medical care. The Constitution Party
of Minnesota supports Colleen Hauser in her defiance of this tyranny.
She is a true hero and patriot, risking incarceration for the right to raise
her family free of government interference.

The issue should not be about the validity of chemotherapy, which has
clinical studies paid for by the pharmaceutical companies to prove the
efficacy of their claims, or whether the natural remedy chosen by the
family is reasonably effective, which has anecdotal support but no
clinical studies to prove or disprove its claims because no one is making
enough money from them to finance those studies. The issue at stake is
government intrusion into the private lives of its citizens, and
infringing on their religious beliefs in violation of the First Amendment
to the Constitution. The court ruling against the family bases its
authority on the assumption that children are property of the state, not
the parents, when in reality it is the parents, not the state, that will
stand before God to be accountable for how they raised their children.

As Thomas Jefferson predicted, the central government has been quietly
encroaching into our lives for generations (under both major parties),
picking off our freedoms one by one, mostly unnoticed by the populace,
and replacing those freedoms with government "benefits" that soften us for
the next level of intrusion. If the New Ulm court ruling stands, this now
includes how we raise our children.

Constitution Party of Minnesota

We Agree

The Republican/Democrat duopoly has, for far too long, ignored the most important issues facing our nation. However, alternate candidates Bob Barr, Chuck Baldwin, Cynthia McKinney, and Ralph Nader agree with Ron Paul on four key principles central to the health of our nation. These principles should be key in the considerations of every voter this November and in every election.

We Agree

Foreign Policy: The Iraq War must end as quickly as possible with removal of all our soldiers from the region. We must initiate the return of our soldiers from around the world, including Korea, Japan, Europe and the entire Middle East. We must cease the war propaganda, threats of a blockade and plans for attacks on Iran, nor should we re-ignite the cold war with Russia over Georgia. We must be willing to talk to all countries and offer friendship and trade and travel to all who are willing. We must take off the table the threat of a nuclear first strike against all nations.

Privacy: We must protect the privacy and civil liberties of all persons under US jurisdiction. We must repeal or radically change the Patriot Act, the Military Commissions Act, and the FISA legislation. We must reject the notion and practice of torture, eliminations of habeas corpus, secret tribunals, and secret prisons. We must deny immunity for corporations that spy willingly on the people for the benefit of the government. We must reject the unitary presidency, the illegal use of signing statements and excessive use of executive orders.

The National Debt: We believe that there should be no increase in the national debt. The burden of debt placed on the next generation is unjust and already threatening our economy and the value of our dollar. We must pay our bills as we go along and not unfairly place this burden on a future generation.

The Federal Reserve: We seek a thorough investigation, evaluation and audit of the Federal Reserve System and its cozy relationships with the banking, corporate, and other financial institutions. The arbitrary power to create money and credit out of thin air behind closed doors for the benefit of commercial interests must be ended. There should be no taxpayer bailouts of corporations and no corporate subsidies. Corporations should be aggressively prosecuted for their crimes and frauds.

We support opening up the debates beyond the two parties and the Commission on Presidential Debates (CPD), a private corporation co-chaired by former chairmen of the Republican and Democratic Party. It is time for our Presidential Debates to once again be hosted by a truly non-partisan civic-minded association