A painfully frequent misinterpretation of the First Amendment

SEATTLE, Washington - You see this over and over and over, but in this case it's someone who should know better. The Associated Press has issues some guidelines to its employees regarding their use of Twitter and Facebook. This comes in the aftermath of a comment critical of a newspaper publisher appearing on the Facebook wall of an AP reporter.

The president of the guild representing AP reporters, Tony Winton, responded with this:

“I am unaware of anything else like that... parts of the policy seem to be snuffing out peoples’ First Amendment rights of expression by a company that wraps itself in the First Amendment.”

Grrr. Here is the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment speaks to government^* restrictions on speech, not restrictions on speech imposed by one private party on another. An employer restricting the speech of employees is out of scope:

The U.S. Supreme Court has never interpreted the First Amendment as having the same power to alter private property rights, or provide any other protection against purely private action. When considering private authority figures (such as a child's parents or an employee's employer), Constitutional free speech provides no protection. A private authority figure may reserve the right to censor their subordinate's speech, or discriminate on the basis of speech, without any legal consequences. For example, per the at will employment doctrine, an employee may be fired from their occupation for speaking out against a politician that the employer likes.

People make this goof all the time, but people should know better, and anyone working in media really really really should know better.

* I'm using the word "Congress" in the amendment to mean government generally; the actual meaning and scope of the word "Congress" here and elsewhere in the Constitution is actually a matter of some debate