Freedom of speech does not mean freedom from consequences. Neither does at-will employment, which might matter more for Juli Briskman, who went from viral hero to the unemployment line within a matter of days. Briskman got captured flipping off Donald Trump’s motorcade as it passed through Sterling, Virginia by AFP photographer Brendan Smialowski. When she advised her bosses at a business that relies on government contracts about the photo, they fired her, Petula Dvorak reports:
On Halloween, after Briskman gave her bosses at Akima LLC, a government contracting firm, a heads-up that she was the unidentified cyclist in the photo, they took her into a room and fired her, she said, escorting her out of the building with a box of her things.
“I wasn’t even at work when I did that,” Briskman said. “But they told me I violated the code of conduct policy.”
That’s because Briskman posted the photo to her social-media accounts:
Her bosses at Akima, who have not returned emails and calls requesting comment, showed her the blue-highlighted section 4.3 of their social media policy when they canned her.
“Covered Social Media Activity that contains discriminatory, obscene malicious or threatening content, is knowingly false, create [sic] a hostile work environment, or similar inappropriate or unlawful conduct will not be tolerated and will be subject to discipline up to an [sic] including termination of employment.”
HuffPost offered up the photo in question, along with more detail on Briskman’s potential claim against Akima. She tells Jennifer Bendery that a male executive was allowed to take down politically charged speech off of his Facebook page rather than get fired:
— HuffPost (@HuffPost) November 6, 2017
Briskman, who worked in marketing and communications at Akima for just over six months, said she emphasized to the executives that she wasn’t on the job when the incident happened and that her social media pages don’t mention her employer. They told her that because Akima was a government contractor, the photo could hurt their business, she said.
Virginia is an employment-at-will state, meaning employers can fire people anytime and for any reason. But Briskman said what’s been particularly infuriating is that a male colleague kept his job after recently posting lewd comments on his Facebook page that featured Akima LLC as his cover photo. She said this colleague was reprimanded for calling someone “a [expletive] Libtard [expletive]” on Facebook, but was allowed to delete the post and keep his job.
“How is that any less ‘obscene’ than me flipping off the president?” she asked. “How is that fair?”
At-will employment theoretically allows for arbitrary hiring and firing decisions. In practice, however, it’s a lot more complicated. A brief Google search turns up this basic FindLaw primer on the myriad of exceptions to that theory on at-will employment, including obvious issues such as discrimination and public-policy exceptions (whistleblowing would be one example.) Given that most employment in the US is non-contractual, one would think the theoretical is hardly worth mentioning, as nearly everyone is familiar in some ways with the exceptions.
In Briskman’s case — assuming we have the full set of facts, which is always a dangerous assumption — she would have some grounds to pursue a wrongful termination suit. It’s not that her employer can’t terminate her, especially after just six months on the job, for her public speech if it conflicts with their business. Flipping off the president could conceivably put the company in an uncomfortable position when dealing with their federal-government clients, although that’s probably mostly theoretical too. However, if they have allowed other employees to modify their social media accounts to comply with company policy, they should have given Briskman the same opportunity. It’s not a free-speech case, but it may well be actionable discriminatory conduct.
In short, actions have consequences all the way around. Without more information about the discussions with Briskman — did they ask her to remove the image and she refused, or did they just fire her outright? — it’s impossible to reach a conclusion over whether she has a case against Akima. As in other cases today, perhaps we should hold off on the righteous indignation until more facts emerge.
This is, however, yet another demonstration that public speech has consequences, and that the First Amendment does not guarantee against free-market responses to them. Post accordingly.