COLUMN-A call for US companies to follow the First Amendment: Ross Kerber

By Ross Kerber

March 25 (Reuters) - The opinions expressed here are those of the author, a correspondent for Reuters. This column is part of the Reuters Sustainable Finance Newsletter, which you can sign up for here - https://www.reuters.com/newsletters/reuters-sustainable-finance/

We Americans pride ourselves on respecting freedom of speech, enshrined in the First Amendment of the U.S. Constitution that prohibits government meddling in our expressions, worship, assembly and writing.

But legally the framework does not apply to private companies. The growth of social media has created a host of cases in which employees find themselves disciplined or fired for comments they considered routine, however sharp. Sometimes the consequences came in the wake of popular backlash against their employers, a dynamic known as "cancel culture."

For instance my colleagues reported in November on how more than 600 people faced consequences over posts they made in the wake of the assassination of right-wing influencer Charlie Kirk, in some cases noting his support for gun rights. Some said a variation of "good riddance," mocked his death or invoked "karma." This brought pressure on their employers to act, including school boards and an airline. Many Republican officials embraced the punitive campaign in response to what some saw as reveling in Kirk's death.

"Call them out, and, hell, call their employer,” said U.S. Vice President JD Vance at one point.

In another case in 2024, Honeywell defeated a lawsuit from an engineer who claimed he was fired over his refusal to participate in diversity, equity and inclusion training.

It seems important to understand just how much our institutions should protect our free speech, as social media platforms grow and as President Donald Trump's administration cracks down on universities and news media.

For guidance I spoke with Aaron Terr, director of public advocacy for the Foundation for Individual Rights and Expression.

The Philadelphia-based group known as FIRE once was seen as conservative-aligned for its skepticism of university speech policies. Lately FIRE has gained liberal fans for stances like defending The Des Moines Register newspaper and its pollster staffer against a lawsuit from Trump.

The following transcript of our conversation has been edited for length and clarity. (Our talk took place before news came late on Tuesday that the Trump administration agreed to a settlement that will bar three federal agencies from pressuring social media companies to remove or suppress speech. Let's keep an eye on what difference that makes.)

Terr: Censorship is always a bipartisan threat. It's really not so much the province of the left or the right, but it's the province of whoever is in power. The Trump administration has amply demonstrated how to use the levers of power to censor speech that those in power don't like.

When you talk about private companies, they don't have any obligation under the First Amendment to respect the freedom of speech of their employees, but there are normative arguments you can make about how they should treat the speech of their employees and how they should regulate it.

There's also a concern about what what's called 'jawboning,' where you have pressure from government officials that may influence or even in some cases coerce private actors, to regulate speech in a certain way.

Question: Employers technically can put a lot of restrictions on, or can fire employees, for what they say and do. But your advice is that we'd be a better society if companies gave their employees like more leeway, at least when they're off the clock?

Terr: That's right. When you look at social media companies, a lot of them commit to free speech. Although they don't have to allow any particular speech on our platforms, if they're serious they would have policies that broadly give users wide latitude to express different viewpoints without being kicked off or having their post deleted.

I would also point out that in the wave of firings over the Charlie Kirk comments, there were a lot of examples of people who weren't celebrating his death but were just being critical of his views or critical of what they saw as the whitewashing of his legacy (or) criticizing his influence on American politics -- and still facing discipline or calls for them to be fired.

As a general matter, we want Americans to be able to have a job and a political opinion. Our concern is that you're going to have millions of Americans walking on eggshells and reluctant to speak about political issues and current events for fear of losing their livelihoods. It's not good for Americans to have First Amendment rights, but then just be totally afraid to exercise them.

Question: How well have S&P 500 .SPX (companies) protected freedom of speech in all its manifestations?

Terr: I don't think private businesses by and large have done a great job of resisting these online outrage campaigns, going back to 2020.

I think whenever you have some major cultural flash point, whether it's the onset of the Covid-19 pandemic, the murder of George Floyd, the October 7th attacks on Israel, in these moments people will say things, people will have reactions and people who disagree with them (will be) on edge about whatever incident or event or crisis is taking place.

In a lot of these cases the companies do buckle under. They have shown a lack of will in resisting these campaigns. They many times actually miscalculate. I think many times the attention spans of these social media mobs are very short.

If all companies got together and said ... 'we're not just going to do it because of demands from the government or some mob stoked by a social media influencer,' I think that would have a great effect. But no one company wants to be the one to go out on that limb.

Question: A big recent example is the case of talk show host Jimmy Kimmel and how he left the air for a couple of days. Do you think his employer, Disney, handled the situation correctly?

Terr: After they brought Kimmel back, his next show was one of the highest rated shows. Which I think was a hopeful sign that at least when this pressure is coming from the government, it's not popular. People don't want agencies like the FCC deciding what a late night host can say.

Disney shouldn't have taken Kimmel off the air in the first place, that was a mistake.