Legal and ethical dimensions of business regulation and ethics

¶ … man who was apparently fired from his job for a Facebook 'like'. The person in question works for a sheriff's department, and liked the page of his boss' challenger in the election. When his boss won re-election, the staffer was fired for supporting the challenger. In this case, the circuit court judge ruled that a Facebook 'like' was insufficient speech to be considered protected under the First Amendment. I am taking the position that this is protected speech under the First Amendment and the staffer should not have been fired. The Sheriff's Office committed a violation of the law and an even more serious violation of ethics in firing the staffers for expressing their opinions online.

The first issue that needs to be addressed in the article is the legality of the issue. The deputy sheriff holds an unelected staff position within the sheriff's office, while the sheriff is elected by the public. The deputy sheriff publicly expressed his opinion that the challenger would be the better sheriff and that he supports the challenger by 'liking' the challenger's page on Facebook. This appears to be the sole method of expressing that opinion. Other staffers within the sheriff's department also expressed similar sentiments and also were fired after the sheriff won the election. The fired staffers responded with a lawsuit, claiming that they were being punished for expressing views that are protected under the First Amendment. The text of the First Amendment is based on "Congress shall make no law…abridging the freedom of speech," but this has been extended in case law beyond Congress and the making of laws. The legal issue here is not whether the actions of the sheriff's department violate the First Amendment, but rather does a Facebook 'like' constitute speech. Facebook has entered the debate by submitting a statement claiming that it does, a position the company would be expected to take because anything else would be insulting to the company given its profile.

In this instance, it is likely that the circuit court ruling will be overturned. Questioning the caliber of speech, rather than the content, is an unusual approach to First Amendment cases. The speech itself is widely broadcast, was clear in its intent, and was received by the sheriff. The sheriff's decision to fire the staffers was based entirely on their actions on Facebook. There is little doubt in the mind of someone familiar with social networking that this speech is equivalent, as Facebook contends "to a front-yard campaign sign" or "standing on the street corner and announcing" his views. It is highly likely, then, that the ruling will be overturned on appeal.

For the sheriff's office, there are two major questions that come into play. The first is with respect to the law, and the second is with respect to ethics. Internally, there is clearly no policy guiding the use of social networking by employees. There has been considerable debate about the use of social networking at work. Concerns for employers include reduced productivity, bandwidth usage and risk of hackers or identity theft (Kelleher, 2009). Occasionally, there are concerns about what people say on social media reflecting poorly on the company, but only as something that affects the business. It is not reflected in the literature that companies are concerned about social networking usage because somebody might say something bad about their boss. This is especially important when the company in question is a sheriff's office, and therefore the political nature of protected speech comes into play. Indeed, having a social networking policy is just smart business practice, and there are many benefits to using it. The key is to train employees about what constitutes acceptable usage, and to use social networking to strengthen bonds within the company, rather than as something to be feared (DiMicco et al., 2008)

The second major issue is the ethics of the situation. Public servants, even elected officials, are expected to uphold high ethical standards. All organizations should have codes of ethics that guide their behavior. In this case, the sheriff's behavior was clearly unethical. The first issue that elected officials need to be able to work with their opponents in a democracy. The second issue is that elected officials need to work in the best interests of their constituents. There is a duty of care that elected officials have to meet the needs of their constituents -- it is part of the bargain of being in a democracy. We are electing servants, not temporary dictators. In this case, the sheriff's actions constitute not only immaturity but also a breach of that trust that the public has in the post. The sheriff is to work for the public, not for himself and his interests.

There is also the issue of the ethics of one's social networking usage. Clearly, it is not ethical to use company time to surf social media, as this would constitute squandering company resources -- and in this case public resources. None of the employees should have been on Facebook at all while on duty, unless specifically authorized to do so for specific tasks. In this situation, the company may not have had a specific policy on social media usage, but that does not preclude the implied understanding that while on company time a person should be working for the company. Thus, if any social networking activity had taken place on company time, then the actions would have been at the very least unethical.

Some might argue that if there is no policy the employees can do whatever they want on company time, but I counter that there is an implied contract that work facilities are to be used for work. However, that is not the key issue here. This is more about the ethics of firing somebody for having a different political opinion, and even more directly firing somebody because they don't agree with your performance as their boss. Ethically, either one of these shows poor judgment and poor maturity on the part of the sheriff. He has breached the public trust by acting not in the interests of those who elected in him, but in his own interests.