What to know about free speech, cancel culture, and your business

The phrase “cancel culture” has become ubiquitous over the last couple years. It strikes fear in the hearts of social media influencers and public figures everywhere. One post in poor taste or the unearthing of a years-old tweet can bring a screeching halt to a politician’s campaign or an emerging artist’s rise to fame. So, what’s an employer to do when an employee likes or shares an inflammatory article on Facebook or posts a TikTok with racially insensitive lyrics? Is the speech protected, or can the company “cancel” the worker’s career? Here are a few considerations.

First Amendment

Are employees entitled to unencumbered freedom of speech at their work or professional organization? The short answer is no, the First Amendment normally doesn’t apply to actions by private employers.

Generally, a private company can discipline an employee for a problematic post without issue because the First Amendment applies only to government action. The private employer’s freedom may be limited, however, if a collective bargaining agreement or individual employee contract prohibits the company from firing someone based on online activity.

National Labor Relations Act