The rise of online social networks is provoking controversies over free speech that U.S. courts should address as soon as possible. One of the more egregious violations of a social network user’s free speech rights we’ve heard of happened here in Charlotte. Ashley Johnson, a 22-year-old waitress at Brixx Uptown, had to work late recently when a couple who was having lunch stayed for three hours and then stiffed her with a crappy $5 tip for her trouble. (For the restaurant-clueless, note that if you take up lots of extra time at a table, remember that the wait person taking care of you could be earning multiple tips at that table while you’re sitting there, so be sure to tip accordingly. If you think this is unreasonable, you probably shouldn’t be eating in restaurants.)
As reported today by the Observer’s Eric Frazier, Johnson went home, and then told friends about the inconsiderate couple, whom she called “cheap piece of shit camper(s).” Johnson told friends her tale of woe by posting on Facebook. Hey, it’s a free country, right? Well, apparently not, because the folks at Brixx soon fired Johnson for griping. The company, you see, has a policy against speaking disparagingly about customers, and against “casting the restaurant in a negative light on social networks.”
Johnson’s case seems a clear-cut violation of her freedom of speech. If Johnson wants to talk about customers once she is away from her employer’s premises, what right does her employer have to tell her she can’t? Realistically, how many times have you complained to friends about someone unpleasant whom you had to deal with at work? I mean, it’s practically an American tradition. And just because Johnson used “new media” to lodge her gripe, how is the new media’s long reach her fault — and, more importantly, how does it nullify her right to free speech?
In the past 20 or so years, American employees have seen an increase in employers’ attempts to control their speech, to the point that the practice has become old hat at many businesses. That attitude is as wrong-headed as it can be, and needs to be struck down by the courts. Contrary to what many corporations think, employees are not company possessions, and businesses are not our parents. They are also, most certainly, not above the U.S. Constitution. As a free speech fundamentalist, I think any rule against making disparaging comments about customers away from company property is intrusive and offensive. And if a worker casts her employer “in a negative light” while she’s away from work, that, too, is her business. In fact, she’d be no different than the vast hordes of employees who do the same thing from time to time. Those employees’ freedom of speech shouldn’t be curtailed just because their companies may not like what they say on their own time. Sure, Johnson’s Facebook post could conceivably, albeit slightly, affect Brixx’s bottom line. But here is another, more critical, bottom line: Employers are not feudal lords or plantation owners, and employees are not company possessions.
This article appears in May 11-17, 2010.
I thought the First Amendment to the Constitution only applied to the government restricting speech, not private entities. If this is indeed the case, then unless the restaurant was part of the government, this isn’t such a clear-cut violation of her freedom of speech.
Wow, only took five minutes for someone to prove they don’t understand the Bill of Rights.
There are degrees of freedom at issue. If Johnson were to verbally complain to a few friends, she would clearly be within her rights to do so.
If she were to take out an ad in Creative Loafing saying the same thing, the company’s policy against dissing customers would probably prevail.
Now take it to Facebook. If she has the usual 100 friends or so, upon which side of the line does it fall?
200?
20?
Actually, it’s not a “clear-cut violation of her freedom of speech”.
Her exact quote was “Thanks for eating at Brixx you cheap piece of —- camper.”
SHE brought her employer into it- that’s the problem. If she doesn’t mention the employer (plus the profanity) she’d probably still have a job.
Isn’t North Carolina also an at-will work state where the employer can make employment decisions how ever they see fit? Also, I’m not sure how this is any different from the NBA fining players and coaches for critical officiating comments, or media personalities being fired for racial speech. I dare say if you wrote a blog about how unimportant newspapers have become in a digital world and how customers are wasting their money on subscriptions when they should just be getting their news for free online, you’d probably hear about not writing any more of those type of blog entries and if it continued you might also be looking for work.
In the discussion of free speech should the Domino’s employees not have been fired for their video “prank pizza” considering how much money the fallout cost Domino’s?
Finally, what is the difference if the waitress had made those comments face to face with the customer or in a Facebook post? Either way it is conduct unbecoming and the employer has the right to defend loss of future earnings by a comment that was better left unsaid.
Everything that occurs in a mind is not necessarily words that should be put into action verbally or as a post. I don’t think it is a surprise to anyone that words have consequences.
Of course she has free speech. And the employer has freedom to continue her employment or end it. Both parties exercised their freedom. What’s the controversy?
She has freedom to speak carelessly as well, and she sure exercised it. Welcome to the real world (both Ashley Johnson and John Grooms need to grow up).
Brixx isn’t congress and a law wasn’t passed saying she couldn’t post her feelings on her Facebook page. She made a comment which apparently is strictly against company policy and got canned. This has nothing to do with the first amendment. If you think this is such a bad thing thing then you should campaign for more labor laws.
If you actually think “free speech” applies here, how far should she be able to take it? Can she also say the same thing about her boss? What about to his face? It is “free speech” after all.
There are always folks who will defend any business’ “right” to do whatever the hell it pleases. To those of you who think it’s “normal” for someone to be fired for expressing themselves (after leaving work and while off the employer’s property),then A. You have a very thin definition of free speech, and B. the point of the blog entry is that such behavior by companies may indeed be the “new normal,” but it shouldn’t be. Human rights are more important than an employer’s touchiness or even his bottom line, and just because someone works for you, that doesn’t mean you own their opinions or their right to express them.
As for “growing up,” edenbridger, it is grown up to defend people’s rights; maybe you should grow up enough to realize that “mature” doesn’t mean kowtowing to anyone with some B.S. level of authority over you — maturity also means courage, and it has something to do with standing up for what’s right. In this case, the waitress was treated unfairly. Brixx, nor any other business, is anywhere near as important as one person’s rights, and I don’t care how “normal” it has become for businesses to crap all over their employees.
We live in this false ideology that “customers are right” and greed rules the business world even when certain rights are ignored for this idea to continue on..
This has certainly been an interesting and intelligent post, given the column and all the various responses. Too bad Frank’s going to come along at any moment and drag it down to his 3rd grade level!
And Grooms is correct; human rights should count for more than companies.
The First Amendment reads: “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.”
In no way does that mean a private individual can freely express themselves without any possibility of consequences vis-a-vis other private individuals.
Propping her up as an example of someone whose rights have been violated is frankly an insult to the millions who truly have suffered for their speech. I had a childhood friend, Hao, whose father spent over a decade in a Chinese labor camp for the crime of criticizing the government. THAT is a violation of free speech.
LOL! You called it, Clyde!
“then A. You have a very thin definition of free speech”
Jesus Christ. Don’t blame me. The *constitution* has a very thin definition of free speech. Stop claiming that it’s a violation of free speech: in this country, it’s not. It’s not even close. As a private individual, I can establish a corporation, hire another private individual, and then fire that private individual for *almost* any reason. The exceptions are gender, race, disability status, and in some states, sexual orientation. What they say – publicly or privately, to their friends or online, no matter how innocuous the statement – is most certainly a legal reason. And if I’m a restaurant owner, firing a waitress who publicly bad-mouths a customer isn’t just within my *rights* – it’s just plain common sense!
I happen to agree that the constitution’s definition of free speech is far too narrow. But that’s more because the constitution is a piece-of-shit document. Everyone and their brother pretends to have a hard-on for the founders & the constitution, but don’t bother actually reading it. If they did, they’d probably find they don’t like American ideals very much, but in today’s society everyone just tries to out-patriot everyone else.
Wake-up call, people. Counting black people as 3/5ths of a person makes you more like the founders. Because they were assholes. Lose the hard-on already.
Freedom of Speech is AN issue here, just not THE issue. Ms. Johnson violated a policy she more than likely agreed to upon employment by signing a piece of paper with a bunch of fine print and legal jargon that was mixed in with her tax forms. NC being a so-called “at-will” state regarding employment, Brixx was within their right to terminate said employment.
How did they find out about the comment on this young lady’s facebook page? Either:
A) a fellow employee brought it to the attention of management…HIGHLY UNLIKELY…which leaves us with two other scenarios you may find DISTURBING…
B) her manager was cyber-stalking her via social media, probably looking for some Spring Break bikini shots to…well, I’ll leave the rest up to you…or EVEN WORSE, there’s
C) Brixx has adopted a “Big Brother” policy, where they have somehow justified invading the privacy of their employees and spying on them, all in the name of the almighty dollar.
As creepy as scenario “B” is, it is “C” that scares me most. Are these practices going to be tolerated by private companies when our even our government requires legislation and special circumstances to do such things? Where are our rights going? What would have been done 30 years ago if an employer was caught tapping an employee’s phone, or peeking into their windows at night? I do not agree with ANYONE invading ANYONE ELSES privacy…ESPECIALLY a business spying on one of it’s workers’ private lives. That’s what all of this amounts to: PRIVACY, which is a key ingredient of LIBERTY, upon which this great nation was founded. I am in favor of BOYCOTTING BRIXX.
John:
You are way off base here.
A person does not have the freedom to publish an abusive complaint about her employer’s customers with impunity.
If you found out that the guy who repairs your car was telling his other customers that you were a cheap piece of **** would you continue to take your car to him?
There is no difference here. You pay him to fix your car, Brixx paid her to wait on customers.
“C) Brixx has adopted a “Big Brother” policy, where they have somehow justified invading the privacy of their employees and spying on them, all in the name of the almighty dollar.”
When you post it on the internet there is no privacy to invade.
You whining know it alls have no idea what youa are talking about. Just proves that once again people in Charlotte have no actual damn concept of the law and how it is applied.
To all you anti-social Facebook addicts who live your lives on a computer: Anything you post on the internet can come back to haunt you. PERIOD.
All of this crap about Facebook ‘privacy’ settings is just a buch of bull. It means NOTHING in this case. Whoever told Brixx about the post, means NOTHING here.
The fact is that she posted something on the internet that was a violation of the company’s policy. They have that right and she knew that when she started work.
This foolish society of today thinks that they can say whatever they want on the internet and it’s their right to do so. Well, sorry, but you are dead wrong. Just look at all the problems with teachers and their Facebook comments.
Get off Facebook and try being a real adult and interacting with living people.
N.C. is an at-will work state and they can fire you for any reason, at any time. It may suck, but unfortunately that’s the way it is folks.
And to all the bleeding heart, bitching waitresses out there complaining about your tips and ‘your’ tables: Remember, you are an employee of the business who hired you. You are there at their pleasure to do what they tell you to. THEY are responsible for your compensation, NOT the patrons. Not quite sure how all that BS got turned around in your minds but you are wrong, and so are they if they are telling you such. It is their restaurant, not yours.
Do not treat customers like they owe you something, because they do not. If you don’t like being a waitress, get the hell out and do something else. We will tip you according to our on rules, not yours. Finally, this young girl will realize her mistake and hopefully learn from it in this case, and maybe some of the rest of you will too.
“N.C. is an at-will work state and they can fire you for any reason, at any time”
Or no reason at all!
The fact is that she ABSOLUTELY had EVERY right to express her opinion. She has that right under the Constitution and she exercised it like a good citizen. BUT, Brixx also had every right to fire her and they exercised THEIR right as well.
With freedom comes responsibility. Arguably, she knew the consequences for her actions and felt that “expressing herself” was more important than her job.
Hey, Johnny! Do you know for a fact that the rest of Ashley’s station was packed during those three hours, and she was deprived of tips on the turns? What about the size of the tab? $5.00 sounds not out of line on a $15.00 lunch tab. Can you also tell me how many times Ashley returned excessive tips? Is it possible that Ashley could have pissed and moaned ad infinitum, without mentioning Brixx by name and kept her job? Was Ashley properly advised of Brixx’s corporate policy? Without all those details, you seem mighty strident.
Of course this is a free nation. That is exactly why Brixx was free to enforce the terms of Ashley’s employment.
Tell me who forced Ashley to accept a job at Brixx, or forced her to to vent on cyberspace, and I will personally take them to task in a very malevolent way. In absence of those considerations, as well as some very important facts, it all seems just a bit whiny.
We do owe Ashley a debt of gratitude however. She reminded us that cyberspace is not private. They used to say, “Don’t write a check that your ass cannot cash.” In cyberspace, your fingers count too!
Forgive me. My fingers got a bit too happy! The saying was, “Don’t let your mouth write a check that your ass cannot cash.”
Adios, Ashley! Good luck in your job search! Really!!
I’m a teenage waitress. So I completely agree with everything on this article. There have been times when I would feel like I would be about to explode on some people while waiting on them. But, like everybody else I complain about it later. And I used to always get the same comment, “well its your job,you get paid to deal with it”. WRONG. And the simple answer is this: because I live off of my customers tips, and I don’t think I can buy a gallon of gas with a $3.50 tip on a $35.00 dollar check. It’s not right. For the most part though, what I were to say about customers outside of my work, is my business. Because I go into work ready to work, not to put up with rude people. So as long as I’m doing my job right,ot any other waitor/waitress… what interest does it have on the business. I mean not once did I hear on this article that the woman showed horrible service? No, she only got a crappy tip for her service and for the amazing 3 hours they got.
Mike….Why don’t you explain the Bill of Rights since you seem bothered that some folks are ignorant.
Share knowledge and help everyone grow!
Mike….Thought I’d help you with the ‘Bill of Rights’.
Just in case someone out there need to refresh their minds, here they are.
The First 10 Amendments to the
Constitution as Ratified by the States
December 15, 1791
Preamble
Congress OF THE United States
begun and held at the City of New York, on Wednesday
the Fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Amendment I
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.
Amendment II
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Brixx pizza sucks anyways the place is always dirty and the crust is frozen and the sauce comes from a can.Brixx pizza can try to fire me but they can’t because I don’t work for these clowns.