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The First Amendment won’t save you from your own bad judgment

Arlington Photo Controversy Lindsey Stone.jpg

This photo of Lindsey Stone at Arlington National Cemetery generated a national controversy after it was posted to Facebook and went viral, ultimately costing Stone and another person their jobs at a nonprofit.

The pundits are eager to cast Lindsey Stone – the Massachusetts woman who lost her job over an inappropriate Facebook post – as a First Amendment martyr. There’s just one thing: the First Amendment does not protect people from getting fired for what they say.

Stone’s troubles began back in October when she was visiting Arlington National Cemetery. As a visual gag, she posed for a photo near the Tomb of the Unknowns while flipping off a sign calling for “Silence and Respect.” She then decided to share this bit of hilarity with the world via Facebook. Bad idea. Following an online protest – some 18,000 people reportedly “liked” a “Fire Lindsey Stone” Facebook page – the prankster was put on unpaid leave by her employer, a non-profit group called LIFE. By Thanksgiving, Stone had been fired.

As the story developed, several news organizations, as well as dozens of online commenters, rushed to imply that Stone’s antics represented one of those hard cases that keep Supreme Court Justices awake at night. For example:

• An ABC News headline frets that Stone’s case “raises free speech questions.”

• Contributors to the Daily Caller and Examiner.com assert that Stone was exercising her “First Amendment rights.”

• Robert Johnson, a military veteran, argues in Business Insider that Stone’s ability to denigrate the military “without fear of retribution” is “what we fought for.”

• A commenter at Gawker accuses those who wanted Stone fired of “trampl[ing] all over the Constitution.”

Not to rain on their parade, but the First Amendment offers Lindsey Stone no job security whatsoever. Like every provision of the Bill of Rights, the First Amendment applies only to the government. The free speech clause says that “Congress shall make no law . . . abridging the freedom of speech” (emphasis added). The text was properly understood only to restrain the U.S. Congress from prohibiting or punishing speech. Over the past century, courts have expanded the First Amendment to apply against state and local governments as well as the federal government, but never against a private company or individual.

Even as it applies to the government, the First Amendment does not offer absolute protection. As Supreme Court justice Oliver Wendell Holmes famously observed in 1919, the Constitution does not grant us the freedom to “falsely shout fire in a theater” (truthfully shouting fire is another matter). Laws regulating various types of speech, including pornography and treason, have withstood First Amendment challenges.

To be sure, if Congress or the Massachusetts legislature tried to punish Stone for her Facebook post, there would indeed be a serious First Amendment issue. But there has been no hint of government retribution against Stone. Granted, she has lost her job, but a private employer such as LIFE remains free to fire an employee for posting disastrously inappropriate content to the web. Indeed, a typical “at will” employee can be dismissed for any reason at all.

The First Amendment was never intended to guarantee consequence-free speech. When the amendment was ratified in 1791, the Founders understood, for example, that individuals would continue to be liable to defamation lawsuits if they engaged in slander. And that’s a good thing. Imagine if you had to stand idly by while others trashed your reputation. Or if employers were powerless to discipline or fire employees who disparage the company brand or divulge trade secrets.

The very essence of freedom is the obligation to accept responsibility for our choices. The Constitution does not shield us from that responsibility.

Adam Freedman covers legal affairs for Ricochet.  His latest book is The Naked Constitution: What the Founders Said and Why It Still Matters (Broadside Books).