Tag: FreeSpeech

Corporate Use of Social Media: A Fine Line Between What Could-, Would-, and Should-be Posted

 

Introduction

In recent years, social media has taken a hold on nearly every aspect of human interaction and turned the way we communicate on its head. Social media apps’ high speed capability of disseminating information instantaneously have affected the way many sectors of business operate. From entertainment, social, environmental, educational, or financial, social media has bewildered the legal departments of many in house general counsels across all industries. Additionally, the generational shaft between the person actually posting for the account versus their supervisor has only exacerbated the potential for communications to miss their mark and cause controversy or adverse effects.

These days, most companies have social media accounts, but not all accounts are created equal, and they certainly are not all monitored the same. In most cases, these accounts are not regulated at all except by their own internal managers and #CancelCulture. Depending on the product or company, social media managers have done their best to stay abreast of changes in popular hashtags, trends and challenges, and the overall shift from a corporate tone of voice to one of relatability–more Gen-Z-esque, if you will. But with this shift, the rights and implications of corporate speech through social media has been put to the test.

Changes in Corporate Speech on Social Media 

In the last 20 years, corporate use of social media has become a battle of relevance. With the decline of print media, social media, and its apps, have emerged as a marketing necessity. Early social media use was predominantly geared towards social purposes. If we look at the origins of Facebook, Myspace, and Twitter it is clear that these apps were intended for superficial uses—not corporate communications—but this all changed with the introduction of LinkedIn, which sparked a dynamic shift towards business and professional use of social media.

Today social media is used to report on almost every aspect of our lives, from disaster preparation and emergency responses to political updates, to dating and relationship finders, and customer service based tasks, social media truly covers all. It is also more common now days to get backlash for not speaking out or using social media after a major social or political movement occurs. Social media is also increasingly being used for research with geolocation technology, for organizing demonstrations and political unrest, and in the business context, for development in sales, marketing, networking, and hiring or recruiting practices.

These changes are starting to lead to significant conversations in the business world when it comes to company speech, regulated disclosures and First Amendment rights. For example, so far, there is minimal research on how financial firms disseminate communications to investor news outlets via social media and in which format they are being responded to. And while some may view social media as an opportunity to further this kind of investor outreach, others have expressed concerns that disseminating communications in this manner could result in a company’s loss of control over such communications entirely.

The viral nature of social media allows not just investors to connect more easily with companies but also with individuals who may not directly follow that company and would therefore be a lot less likely to be informed about a company’s prior financial communications and the importance of any changes. This creates risk for a company’s investor communications via social media because of the potential to spread and possibly reach uniformed individuals which could in turn produce adverse consequences for the company when it comes to concerns about reliance and misleading information.

Corporate Use, Regulations, and Topics of Interest on Social Media 

With the rise of social media coverage on various societal issues, these apps have become a platform for news coverage, political movements, and social concerns and, for some generations, a platform that replaces traditional news media almost entirely. Specifically, when it comes to the growing interest in ESG related matters and sustainable business practices, social media poses as a great tool for information communication. For example, the Spanish company Acciona has recently been reported by the latest Epsilon Icarus Analytics Panel on ESG Sustainability, as having Spain’s highest resonating ESG content of all their social networks. Acciona demonstrates the potential leadership capabilities for a company to fundamentally impact and effectuate digital communications on ESG related topics. This developing content strategy focuses on brand values, and specifically, for Acciona, strong climate-change based values, female leadership, diversity, and other cultural, societal changes which demonstrates this new age of social media as a business marketing necessity.

Consequentially, this shift in usage of social media and the way we treat corporate speech on these platforms has left room for emerging regulation. Commercial or corporate speech is generally permissible under Constitutional Free Speech rights, so long as the corporation is not making false or misleading statements. Section 230 provides broad protection to internet content providers from accountability based on information disseminated on their platform. In most contexts, social media platforms will not be held accountable for the consequences resulting therefrom (i.e. a bad user’s speech). For example, a recent lawsuit was dismissed in favor of the defendant, TikTok, and its parent company, after a young girl died from participation in a trending challenge that went awry because under § 230 the platform was immune from liability.

In essence, when it comes to ESG-related topics, the way a company handles its social media and the actual posts they put out can greatly affect the company’s success and reputation as often ESG focused perspectives affect many aspects of the operation of the business. The type of communication, and coverage on various issues, can impact a company’s performance in the short term and long term hemispheres–the capability of which can effectuate change in corporate environmental practices, governance, labor and employment standards, human resource management and more.

With ESG trending, investors, shareholders, and regulators now face serious risk management concerns. Companies must now, more publicly, address news concerning their social responsibilities, on a much more frequent basis as ESG concerns continue to rise. Public company activities, through Consumer Service Reports, are mandated in annual 10-K filings and disclosures by the SEC, along with ESG disclosures thanks to a recent rule promulgation. These disclosures are designed to hold accountable and improve environmental, social, and economic performance when it comes to their respective stakeholders’ expectations.

Conclusion

In conclusion, social media platforms have created an entirely new mechanism for corporate speech to be implicated. Companies should proceed cautiously when covering social, political, environmental, and related concerns and their methods of information dissemination as well as the possible effects their posts may have on business performance and reputation overall.

How One Teenager’s Snapchat Shaped Students Off-Campus Free Speech Rights

Did you ever not make your high school sports team or get a bad grade on an exam? What did you do to blow off steam? Did you talk to your friends or parents about it or write in your journal about it? When I was in High school- some of my classmates would use Twitter or Snapchat to express themselves. However, the rates for the use of smartphones and social media were much lower than they are today. For instance, today high school students use their smartphones and social media at an incredibly high rate compared to when I was in high school almost ten years ago. In fact, according to Pew Research Center, 95% of teenagers have access to smartphones and 69% of teenagers use Snapchat. This is exactly why the recent Supreme Court decision on Mahanoy Area School District v. B.L. is more important than ever, as it pertains to student’s free speech rights and how much power schools have in controlling their student’s off-campus speech.  Further, this decision is even more necessary because the last time the Supreme Court ruled on student’s free speech was over fifty years ago in Tinker v. Des Moines, way before anyone had smartphones or social media. Therefore, the latest decision by the Supreme Court will shape the future of the power of school districts and the first Amendment rights for students for maybe the next fifty years.

 

The main issue in Mahanoy Area School District v. B.L. is whether public schools can discipline students over something they said off-campus. The facts in this case, occurred when Levy, was a sophomore at Mahoney Area School District. Levy didn’t make the varsity cheerleading team; naturally, she was upset and frustrated about the situation. So, that weekend, Levy was at the convenience store in town with a friend. Levy and the friend took a Snap Chat with their middle finger raised with the caption “F- School, F-Softball, F-Cheerleading, F-Everything” and sent it to her Snap Chat friends. Then, the picture was screenshotted and shown to the cheerleading coach. Which lead to Levy being suspended from the cheerleading team for one year.

 

Furthermore, Levy and her parents did not agree with the suspension and the school’s involvement in Levy’s off-campus speech. Therefore, Levy and her parents filed a lawsuit claiming their suspension violated Levy’s First Amendment free speech rights. Levy sued the school under 42 U.S.C. § 1983 alleging (1) that her suspension from the team violated the First Amendment; (2) that the school and team rules were overbroad and viewpoint discriminatory; and (3) that those rules were unconstitutionally vague. The district court granted summary judgment in favor of Levy, stating that the school had violated her First Amendment rights. The U.S. Court of Appeals for the Third Circuit affirmed the district court decision. The Mahoney School District petitioned for a writ of certiorari.

 

In an 8-1 decision the Supreme Court ruled in favor of Levy. The Supreme Court held that the Mahoney Area School District violated Levy’s First Amendment rights by punishing her for using vulgar language that criticized the school on social media. The Supreme Court noted numerous reasons why they ruled in favor of Levy. Additionally, The Supreme Court noted the importance of schools monitoring and punishing some off-campus speech. Such as, speech and behavior that is “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students.” This is more necessary than ever before due to the increase in online bullying and harassment; that can impact the day-to-day activities of the school and the development of minors.

 

While it’s important in some circumstances for schools to monitor and address off-campus speech. The Supreme Court noted three reasons that would limit schools from interfering with student’s off-campus speech. First, a school, concerning off-campus speech, will rarely stand in loco parentis. Therefore, schools do not have more authority than parents. Especially not for off-campus speech. The parent is the authority figure; and will decide to discipline or not in most activities in their child’s life, especially what happens outside of school. This is important because parents have the authority to raise and discipline their children the way they believe, not based on the school district’s beliefs.

 

Second, “from the student perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.” There would be no boundaries or limitations to what the school district would be allowed to discipline their students on. For instance, what if a group of students on a Saturday night decided to make a Tik Tok, and during the Tik Tok, the students curse and use vulgar language, would they be in trouble? If there were no limits to what the school could punish for off-campus speech, then those students could be in trouble for their Tik Tok video. Therefore, it’s important that the Supreme Court made this distinction to protect the student Frist Amendment rights.

 

Finally, the third reason is the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off-campus.” For instance, the Supreme Court stated that if schools did not protect their students’ unpopular opinions, this would limit and ruin the student’s ability to express themselves and schools are a place for students to learn and create their own opinion- even if that opinion differs from the school’s. To conclude, this would severely impact the student’s ability to think for themselves and create their own opinion, and respect other’s opinions that differ from their own.

 

Overall, I agree with the Supreme Court’s decision in this case. I believe it’s essential to separate in-school speech and off-campus speech. However, the only time off-campus speech should be monitored and addressed by the school is if there is bullying, harassing, or threatening language against the school, groups, or individuals at the school. With that being said, the Supreme Court noted three very important reasons as to why the public schools cannot have full control of students’ off-campus speech. All three of these reasons are fair and justifiable to protect the parents and students from being overly controlled by the school. To conclude, there is still a lot of questions and uncertainty, especially since technology is rapidly advancing and new social media platforms emerging frequently. I am curious if the Supreme Court will rule on a similar within the next fifty years and how this will impact schools in the next few years.

 

Do you agree with the Supreme Court decision and how do you see this ruling impacting public schools over the next few years?

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