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Social Media in the Workplace – From Constitutional to Intellectual Property Rights

30 Pages Posted: 2 Nov 2013  

Jon Garon

Shepard Broad College of Law

Date Written: November 1, 2013

Abstract

Social media has become a dominant force in the landscape of modern communications. From political uprisings in the Middle East to labor disputes in Washington State, social media has fundamentally disrupted the way in which communications take place. As noted constitutional scholar Erwin Chemerinsky explained, “technology has changed and so has First Amendment doctrine and American culture. It now is much more clearly established that there is a strong presumption against government regulation of speech based on its content.” Just as the government must tolerate more speech, the same thing is true about employers. Chemerinsky further notes that “for better or worse, profanities are more a part of everyday discourse.” Abrasive speech may be coarse from the word choice or may more readily upbraid the objects of the speech. Whether foul or abusive, such speech now pervades commercial and social media.

Social media fundamentally upends the notion of the traditional commercial media environment and with that, it reverses the established legal doctrine from constitutional assumptions to everyday rules involving copyright, defamation, and unfair labor practice. For employers, these rules are particularly important to navigate because they effect the manner in which the companies communicate with the public, how employees communicate with each other, and how laws are restructuring the employee-employer relationship. The transformation is taking place with changing policies affecting trade secrets, confidential information, copyrighted material, aggregated data, trademarks, publicity rights, and endorsements.

This article highlights the nature of the changes as they present the new paradigm shift and provides some guidance on how to prepare policies for the transitional model. The article tracks the rise of the many-to-many model of social media, its effect on commercial speech, intellectual property, and labor law. The article concludes with suggestions on employment policies geared to managing these changes in the modern workplace.

Keywords: social media, labor, employment, scarcity, many-to-many, wiki, copyright, trademark fair use, constitutional, free speech, First Amendment

JEL Classification: E24, J28, J38, J39, J53, L82, L86, M3, M30, M37, M39, M54, O34

Suggested Citation

Garon, Jon, Social Media in the Workplace – From Constitutional to Intellectual Property Rights (November 1, 2013). Available at SSRN: https://ssrn.com/abstract=2348779 or http://dx.doi.org/10.2139/ssrn.2348779

Jon M. Garon (Contact Author)

Shepard Broad College of Law ( email )

3301 College Avenue
Ft. Lauderdale, FL 33314
United States

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