Articles & Publications 02.05.24

Free Speech – Where do we Draw the Line

In recent times, headlines have been dominated by instances where students, professors, and professionals engaged in inflammatory, anti-Semitic, racist, sexist, and offensive language. The fallout has led institutions to withdraw employment offers and terminate individuals, sparking debates about the intersection between free speech, ethical obligations, and rules of professional conduct in the age of social media and viral posts.

While it's universally acknowledged that inappropriate language should be avoided in any setting, the challenge arises in delineating the boundary between personal and professional views.

Notable Cases:

NYU Law Student: In October 2023, a NYU law student and Student Bar Association President faced repercussions after expressing solidarity with Palestinians and holding Israel responsible for loss of life. Winston & Strawn rescinded the student's job offer, leading to a series of statements from NYU distancing itself from the views expressed.

University Professors: Professors at various universities faced scrutiny for expressing opinions. A Washington University professor claimed he was fired for supporting Israel's air strikes, while a Columbia professor was criticized for condoning terrorism. A School of the Art Institute of Chicago professor was accused of posting an anti-Semitic rant on Instagram.

Chicago Lawyer: A lawyer from Chicago lost her job at the Illinois Comptroller’s office after her hateful and anti-Semitic Instagram messages went viral.

Lewis Brisbois Partners: Former partners from the Los Angeles branch of Lewis Brisbois Bisgaard & Smith resigned after leaked emails containing racist, sexist, and offensive language surfaced.

Free Speech in the Social Media Age:

In the era of social media, employers and individuals are left questioning where courts draw the line on liability concerning free speech. While the First Amendment protects free speech, it's not absolute and has limitations, such as inciting lawless action or distributing obscene materials.

In professional contexts, the U.S. Supreme Court has not recognized "professional speech" as a separate category but has provided less protection in situations involving disclosure of factual information in commercial speech or when states regulate professional conduct incidentally involving speech.

Legal Ramifications and Institutional Responses:

While explicit rules of professional conduct may vary, organizations can take steps to avoid negative repercussions. Ensuring official statements reflect organizational views is crucial. However, the legal landscape is nuanced, as demonstrated by a case where the use of university stationery did not render the University liable.

In conclusion, individuals are reminded of the enduring nature of written communication in the digital age. Employers and academic institutions are urged to educate, train, and implement policies that condemn hateful and offensive speech to avoid potential liabilities.

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. To consult with our legal professionals for advice on specific situations: