Yes, a South Carolina employee can be fired for what he/she posts on Facebook. No, that does not violate the First Amendment (usually). Yes, I know we live in America, I can smell the patriotism in the air all the time, too.
Across the country in the last few months, protesters have filled the streets to oppose police brutality and support the #BlackLivesMatter movement. As a result of these protests, many Americans have stood up in solidarity with the protesters, either by joining the protests physically or by supporting the movement via social media. Other Americans have offered a different perspective on the protests. For example:
In Charleston, South Carolina: “Well I personally think if they don’t like it here in America, give them a ticket back to Africa and see how they like living there!!!! I am so sick of all this BLM!!!” said the employee who was fired (obvs).
In Columbia, South Carolina: “A senior living home in the S.C. Midlands has fired an employee over what the home called an “extremely offensive and inappropriate” post on social media,” which apparently was the use of the n-word.
In Columbia, South Carolina: “Three first responders in South Carolina have been fired for insensitive posts on social media, two days after a Columbia fire captain was dismissed over a Facebook post in which he threatened to run over protesters blocking traffic.”
Do South Carolina Private Employees Have “Free Speech Rights”?
The answer: it depends on whether you work for a private employer or for a public employer (i.e., the government).
If you work for a private employer, YOU DO NOT HAVE UNLIMITED FREE SPEECH RIGHTS. At least when it comes to decisions made about your employment. This is perhaps the biggest point of confusion that South Carolina employees have. The First Amendment to the U.S. Constitution prohibits the federal government from impinging on your rights to free speech. In other words, as an ordinary citizen, you can protest, complain about the government or any other issue, and the federal government cannot prohibit you from doing so (subject to some exceptions). But private companies, from businesses as big as Amazon and Walmart all the way down to the little mom-and-pop store that Amazon and Walmart will soon put out of business, are not bound by that prohibition. That means that you can be fired in South Carolina for things that you say, and that termination does not violate the 1st Amendment.
“Things you say” includes comments made on social media. In the olden days of ages past, like 2003, Facebook did not yet exist. So if you had a hot take about the 2003 equivalent of #BlackLivesMatter, your scintillating opinion was typically limited to your family and friends, and unless you had snitches in your friends group, your employer would never even know about your preferred nomenclature when referring to African Americans. But now, Facebook provides a ready outlet for expressing all of those thoughts directly from your brain into public view–including a public view that your employer can see.
So, what’s the takeaway for employees of private companies in South Carolina? Answer: You can be fired for comments you make on social media and elsewhere online (even those made on a personal page during non-working hours), especially if the content of those contents violate the stated values and culture of the company. Racist comments, no matter how many African Americans you say are your close friends (it’s just one, it’s always just one), will still probably result in your termination.
Do South Carolina Public Employees Have “Free Speech Rights”?
The answer: Yes, but those rights are not unlimited.
Because the government is your employer, you do have more free speech rights because the government IS bound by the First Amendment. However, a public employee’s free speech/freedom of expression rights are not without limitation. In order to qualify for protection, the employee’s comments must be about a matter of public concern. If so, then the court will use a balancing test to determine the competing interests of the employee’s rights with the employer’s interest in the efficient operation of government. If, after that test is complete and the court deems the employee’s comments as protected, then the employee cannot be fired for their comments. If the employee is fired after making protected comments, then the court looks to see if the employee was fired BECAUSE of the comments or for some other reason that the company puts forth.
Public employees also have certain grievance rights, subject to deadlines and requirements, and these grievance rights provide for some level of due process related to a termination or other employment decision.
Do Private Employees Have Any Other Rights Related to Speech?
Thank you for asking that, yes, I was just going to bring that up. South Carolina law does protect employees’ expressions of political opinions or other exercise of political rights guaranteed by the state or federal constitutions. See S.C. Code Section 16-17-560. The S.C. Supreme Court has determined that this statute creates a basis for bringing a civil lawsuit against an employer if the employee is terminated “because of [the employee’s] political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State.” But this law has been narrowly applied in past cases, and facts for any such lawsuit based on this statute will matter greatly. Using racist or objectively offensive language probably doesn’t qualify as political speech in most circumstances. But as we’ve blogged about before, getting fired because you voted for Donald Trump, for instance, almost certainly would violate this law.
But I Want to Post Racist Comments On Facebook. Should I Do It Anyway?
South Carolina employees need to understand that their actions, both inside and outside of work, can be used by their employer in making termination or other employment decisions. Political speech or exercise of political rights are more likely to be protected, but calling for violence or death against those who you disagree with will not be. Be smart, be thoughtful, and don’t use the n-word on Facebook.