Jeopardizing Our Future Careers: The Problem with Our Notions of the First Amendment

by Rebekah Moraites, SUNY Cortland, May 7, 2007

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Without a doubt, the web logging experience is on fire. Did you know that nearly 1 out of every 3 students publishes his or her ideas on a blog? From my experience, academic blogs supplement or replace classroom discussion in some Cortland State courses. Students' personal blogs eclectically mix their creativity and individuality while keeping in touch with friends. Blogging has become one of the greatest connection and stress-relieving tools of the American student. Technorati currently tracks over 70.4 million blogs in an effort to connect these conversations. According to Technorati data, 18 blogs are updated every second. Now that's a lot of blogs! With the enormous overload of blogs published, the student blogger has undoubtedly crossed the line of what they think Free Expression is and jeopardized their future job opportunities.

We make unfair assessments when our emotions cloud our rationality. For example, I may be upset with my boss after work and want to write about his unfair work ethics. I might write something like this:
I think I heard my boss pays his employees "under-the-table." I'll fix him -- I report his tax fraud! By the way, he is a sleaze. I just know he is a sex offender. He will stop at nothing to get more money. I can't believe this guy actually came up with the coolest video game to date. It will be out later this year. This racing game will really rival the others. Wait until the competitor hears about this! Wait until the community hears what a creep is living in their neighborhood!
You know I just can't wait to post it on my "personal" blog. Aren't we all guilty of this scenario? Unfortunately, a "personal" blog is not really personal at all. Alone in the moment, we publish our words. However, not only is it instantaneously available for the infamous boss to see, it is cached in databases for the competitors to see as well.

Blogs are another medium in which the government protects protected Free Speech. In the First Amendment, we are guaranteed the right to Free Speech. We understand that we aren't "speaking" on our blogs, but that doesn't connote that our words on blogs are not applicable to the First Amendment. Because blogging is another form of communication, our blogs are protected under the First Amendment. In the Supreme Court case, American Civil Liberties Union v. Reno, a panel of federal judges recognized the Web as a publishing medium in which personal pages are the equivalent of individualized newsletters about that person or organization. They also concluded that the Internet deserves at least as much protection under the First Amendment as printed material receives. In other words, when we turn to chronicle our daily activities publicly, we should be assured that we have as much free speech as the law has set in place for offline writing.

Does that mean I can write anything? No. Although students are guaranteed the right of Free Expression, we are not guaranteed our expressions to be protected when we use obscenity, defamation, hate speech, or fighting words. Most of us are familiar with the term Free Expression and take it to extremes. In order to defend our words, we say, "Free Expression, man! First Amendment!" However, unprotected expression might be a new one for us. Let's take a closer look at some unprotected forms of expression that just might turn off our future employers:
• Obscenity: When used in the context of the First Amendment, obscenity has to do with sex. In the famous Supreme Court case, Miller v. California, three rules were established to decide whether or not material is obscene:
Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.
These rules were taken directly from the Miller v. California Supreme Court proceedings.
• Defamation: Defamation is a false, public representation of a person. If the person is a private figure, s/he must only prove that you acted negligently. If the person is a public figure, s/he must also prove that you acted negligently as well as proving that the misrepresentation was intended to be malicious. In both cases, you may defend your statement with evidence that it is the truth.
• Hate Speech: Although hate speech is hard to specifically define (and is even harder to legally define), we should look at it as more than just an expression of ideas; instead, it is used to repeatedly promote fear or incite violence from a particular group of people. This would include using racial slurs.
• Fighting Words: Insulting or fighting words are words that would inflict injury or tend to incite an immediate breach of the peace. In other words, calling someone names is not a breeah of the First Amendment; instead, telling someone "they better watch their back because you are going to kill them," would indeed be fighting words.

Looking back, had I posted that my boss was a sex offender without evidence, would I have been in violation of the First Amendment? What if I just wrote about work on my personal blog? Unfortunately, I cannot answer that for you. I am not here to give legal advice, but I am asking you to question how "free" is your student blog. Had I posted these hypothetical things, not only would I be hurting others, I might be hurting my own opportunities of the future. Our behavior now predicts our future behavior. Students need to rise above the situations and remind ourselves that our future employers might google our names. Just because we are ignorant of what is protected and what is not will mean nothing to our future employers. Countless people have been fired over the content of their blogs! With blog search engines, our career-ending words would just be a click away.
It is time to take our words back. There are a couple of ways to avoid jeopardizing future careers. Anonymity is a legal way to say what you want on a blog. The Supreme Court has held that citizen journalists are allowed to keep their identities anonymous in the famous case of Apple v. Does. Therefore, as a blogger, you have a legal right to keep your identity hidden when you are posting. Secondly, you may also choose your readers. Instead of allowing an unlimited amount of people to read what you have written, blogging applications can often allow a feature to be turned on or off that restricts viewers. If you want to stay connected with your friends but still want to write, this is a great option for you. Finally, pertaining to the material of your blog, be sure to ask yourself the following questions in the future:
1. Does my writing pass the Miller test?
2. Is my writing reckless with the truth?
3. Am I negatively addressing someone of a particular ethnicity, moral or political view, socioeconomic class, or appearance?
4. Is my writing intended to incite violence?
5. Did I unintentionally give away any secrets of my job?
If your answer is yes to any of these, I strongly encourage you take a step back and rationally approach the subject of your blog in order to embrace what real Free Expression is without jeopardizing your career.

Works Cited

Electronic Frontier Foundation: Defending Freedom in the Digital World. Ed. Millican, Elly. 1 March 2007. www.eff.org.

Miller v. California. 1 March 2007.
faculty.ncwc.edu.

Readings On Computer Communication and Freedom Of Expression. Ed. Abelson, Hal. 8 October 2001. 1 March 2007. Trackback Pings

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