Who’s on First (Amendment)?
Free Speech Considerations for your Small Business
First things first, as a private business, the First Amendment doesn’t restrict you too much. The First Amendment at its core is intended to protect people from government interference – not private businesses. It is unconstitutional for governments to pass laws that could get in the way of your right to believe in and practice religion, to publish your ideas or the news, to peacefully assemble, to petition the government or your freedom of speech.
Freedom of speech is a multifaceted, complex term that has been interpreted to include various forms of speech, including spoken language, expression, gestures, and symbolic speech like waving a flag or wearing an armband. This blog post will mostly discuss the last area – the freedom of speech. As a private company, you can typically keep unwanted speech out of your private storefront, office, or property (wherever you work!). However, there are a few considerations related to your role as a business in the community and as an employer and your employee’s rights as well.
Commercial speech refers to any kind of speech – whether it’s published in print, online, radio, shouted from the rooftops, or elsewhere – that is intended to promote a business's products or services. In other words, mostly advertisements.
Commercial speech is protected but not as much as other types of speech. Courts evaluate laws regulating your right to advertise using an intermediate-level test. It first asks whether the speech is about lawful activity in the first place (i.e., your right to advertise your underground hermit crab fight club betting ring is probably not protected) or if it’s misleading (e.g., advertising a big blowout sale you do not intend to honor or have is not protected). Then, courts will weigh the government’s interest in regulating that speech (such as protecting public health through certain labeling requirements) with how well the speech restriction actually succeeds at that interest without being more extensive than necessary.
Laws regulating commercial speech of businesses include bans on false and misleading advertising, regulations surrounding product labeling to ensure product safety, or statutes that require specific language or disclosures on advertisements relating to specific industries, such as home improvement contractors (see our resource page for our home improvement resource!), lawyers, and pharmacies. You also can’t advertise in a way that might violate the rights of others – such as using copyrighted images or music without the owner of that copyright’s permission or using photos you took of others without their okay. (Check out our photo release contract template for sale in the template library and our blog post on copyright infringement).
Some businesses have sought to protect their public image from negative publicity that can come from reviews published on websites like Yelp or others. However, courts have not been sympathetic to these attempts unless the posts were clearly malicious or false. The best way to combat negative press or bad reviews – which is sometimes inevitable, you are human after all – is through positive press, great experiences, and good reviews.
Mostly, you have the right to advertise your business, but if you ever aren’t sure if there are specific legal requirements that you have to follow, it’s good to work with a lawyer who can help you navigate specific rules or regulations surrounding your trade or specialty.
If you’re a private business – that is, not a government or other employer who has been found to serve in a government-like capacity – your employees are not necessarily protected from consequences, including termination, for their own speech. It’s never an employee’s right to speak rudely to a customer or share your secret recipes with the world, but in at-will employment states like Pennsylvania, employees can be terminated for conduct they perform outside of and unrelated to work as well. This could be for things you might not want to be associated with your company, like joining an organization with a hateful mission or posting obscene material on the internet (so long as they don’t have an employment contract that says otherwise). Of course, employees have the First Amendment right to speak openly outside of work. For example, they can share criticisms of their work online or elsewhere, but this right does not protect them from the potential employment consequences of that speech right, like legal ramifications for violating a non-disclosure agreement or termination of their employment.
There are federal and state laws to be mindful of that protect employees from certain types of speech surrounding the workplace, such as whistleblower laws, or anti-retaliation laws when a worker might report discrimination. The National Labor Relations Act also protects employees from retaliatory employer behavior for speech related to work-related experiences and situations, like sharing salary information.
The balance between making sure your employees feel respected and able to express themselves and making sure your brand and public image remains positive in the community is one that small businesses must navigate. It helps to have a clear code of conduct policy that helps establish the company’s desired workplace culture. This policy can help communicate a variety of subject matters related to employees, including, but not limited to: dress code, social media rules, customer/client/co-worker engagement, what constitutes trade secrets they might learn on the job, as well as anti-discrimination and anti-harassment policies.
Ultimately, you, the small business, can still advertise, speak openly, have ideas and opinions, and create the kind of employment environment that you want. But, remember having the right to say it, doesn’t mean it’s right to say. The public can be pretty critical of speech. It doesn’t like businesses making it through the negative press, loss of sponsors or clients, or boycotts. Being a business owner means celebrating the community that you’re in and being in tune with the ideas they want to celebrate. At Trellis, we’re so happy to help local businesses engage in this celebration, and help them navigate the complex speech they might not always be so sure about.
DISCLAIMER: This blog is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation with an attorney.