Free speech, the Supreme Court and social media, oh my!

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We are at an inflection point. This has been building for years, although it is easier to see with the benefit of hindsight. The pandemic forced employers and employees to utilize remote forms of communication and monitoring. Politics ooze in every aspect of our culture and daily lives with no intention of finding middle ground or compromise. Social media gives a platform to every village idiot and genius alike, but the messages that trend are usually the most divisive forms of tribalism and virtue signaling. Simply put, technology has outpaced our ability to put guardrails around permissible and impermissible speech, a problem that is exacerbated by the current state of political discourse. By way of illustration, the quintessential example of unprotected speech is yelling “Fire!” in a crowded movie theater, right? But what if the theater attendees were all virtual? Are the limits of speech in a large physical space the same for a virtual one? Should they be the same when the virtual forum reaches exponentially more people? What about misinformation during times of public health crisis like a pandemic?

These issues have been bleeding into the workplace for years, but began accelerating since the dawn of social media and entered warp speed with the pandemic. And now 2023 enters stage left, with more workplace litigation involving online speech, regulation/censorship and Supreme Court showdowns than at any time in the last few decades.