Sticks and Stones May Break Bones, But Words Can Get You Fired: An Inequitable Distinction and The Need for Updated Constitutional Interpretation

Abstract

Although the ways that citizens communicate and exercise their freedom of speech have changed, constitutional interpretations surrounding that communication and speech remain the same. In 1883, in the decision of the Civil Rights Cases: United States v. Stanley, the Supreme Court held that the Fourteenth Amendment’s Equal Protection Clause restrains government actors only. So, if a citizen who expresses an unpopular opinion on social media is a private employee, as opposed to a government (public) employee, the private employee can be terminated with virtually no redress. Cases involving public employers and employees dominant Supreme Court rulings, while cases involving private employers and employees go unnoticed. Although the latter types of cases may be found, they do not reach the level of being binding on all because the interpretation of the Constitution and legislation does not allow it. This Article examines case law, the history of the interpretation of the Fourteenth Amendment, and the reasoning of the Court when ruling on cases that have solidified the distinction between public and private employees’ free speech. The author examines laws, legislation, and social media policies that also allow for this distinction. The author concludes that, despite the historical interpretation, as communication media change, so should the laws that surround them to allow private employees the same protection and redress as public employees.