Kimberly Swann, a 16 year-old office worker posted to her Facebook page, “this job is boring.” She was fired.

Dan Leone, who worked for the Philadelphia Eagles, criticized the Eagles on his Facebook page for allowing a player to sign with another team. He was fired.

Dawnmarie Souza worked for an ambulance company as an emergency medical technician. She was fired after she made posts to her Facebook page criticizing her supervisor.

Were these firings fair?  Well, that’s a matter of opinion.

Were they legal?  That question is yet to be answered.

Souza has the support of the National Labor Relations Board, which claims the company’s policy prohibiting employees from making disparaging remarks about supervisors and depicting the company "in any way" over the Internet without permission violated Federal labor laws.

And of course there’s the First Amendment to the United States Constitution which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 

The First Amendment is applauded as one of the fundamental backdrops of American Society, but there are limits.  And these limits were carefully planned and meant to be strictly followed. We must be careful not to be obscene, use fighting words or incite imminent lawless action.

However, The Internet and, specifically, social media, were not even imagined when the First Amendment was drafted, and they are not fully understood by those who sit in judgment over our Constitutional rights.

“Judges on the nation's top court are handicapped by a lack of knowledge about the Internet when deciding related cases, a U.S. Supreme Court justice admits,” reports the ABA Journal.

The ABA Journal references a recent speech at Vanderbilt University by 72 year-old Supreme Court Justice Stephen G. Breyer during which he said, "If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like ... The Social Network, which I couldn't even understand."

Another important question is how the “employee-at-will” status relates to firing based on speech.

An employee who can be fired or resign at any time for any reason or no reason is not owed the protections of workers who have contracted employment. Regardless of any posts, the bottom line is that an employer can terminate an employee at any time without cause if it so chooses.

Employees-at-will have the protection of Title VII of the Civil Rights Act, but an argument for coverage of social network posts seems futile at best, particularly as our Supreme Court Justices have yet to fully understand the modern phenomenon. 

Title VII prohibits most workplace harassment and discrimination. It covers all private employers, state and local governments, and educational institutions with 15 or more employees. In addition to prohibiting discrimination against workers because of race, color, national origin, religion and sex, those protections have been extended to include barring against discrimination on the basis of pregnancy, sex stereotyping and sexual harassment of employees. It currently does not cover speech made on social Websites that express simple displeasure with an employer or supervisor. Title VII is likely not to be amended to do so in the near future. The Supreme Court will not make social networkers a protected class and subject their posts to strict scrutiny or intermediate scrutiny before allowing them to be fired.

The Internet has changed our world tremendously and more tension is likely to occur over posts as employers become more Internet savvy.

Judge Stewart Dalzell of  the United States District Court for the Eastern District of Pennsylvania remarked, “Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar – in a word, “indecent” in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice.”

Without question, the Internet is firmly in place. Technology makes it easier and more attractive to communicate via the Web. Our words come out faster, are more potent, and their effect more powerful. The Internet provides a forum for discourse and discussion. It is not our grandfather’s newspaper. We are the writers, the editors and the publishers. The law will protect our speech in limited arenas, but we must remember that what we say is accessible, instantaneous and, perhaps, unforgiving. 

We included a number of tips for managing your social media postings in a previous post on The Law Blog, Social Media: Bringing People Together or Breaking Families Apart? which looked at the increased use of social media in divorce court.  Many of those same common sense approaches might avoid a great deal of workplace grief and even job loss.

Undoubtedly, Souza’s case and others like it will change the way employees discuss employers and the way employers fashion policies that involve censorship. We’ll be watching, and posting on our Facebook page.