How First Amendment Protections Differ When it Comes to Rap, Facebook, and Employment

Facebook_iconThree years ago, I attended my first rap concert, Watch the Throne (Jay-Z and Kanye West) with my then teenage daughter. While I was familiar with some of the more mainstream Kanye West songs, I was not familiar with most of Jay-Z’s songs. During our two-hour trek to the concert, my daughter schooled me on the songs and the underlying meanings of the lyrics. Thanks to her help, the concert was fabulous!

So, you can imagine my surprise and intrigue when I read an article on Slate by Dahlia Lithwick titled “Schooling the Supreme Court on Rap Music” Having been “schooled” myself for years now on the underlying meaning in RAP lyrics, I realized this would be no easy task!

On December 1st, the United State Supreme Court heard the case Elonis v. United States involving a Facebook post by Anthony Elonis who made comments about killing his estranged wife and others in rap lyric form. Elonis’ estranged wife obtained a protection from abuse order against him which only led to more disturbing Facebook postings. Elonis claimed the postings were therapeutic in nature and not meant as a “true threat” but were meant as a means to express his depression after he was laid off from his job and he and his wife separated. Elonis was ultimately convicted of violating a federal law against sending threatening communications. In this landmark case, the United States Supreme Court will decide whether the speaker’s intent or the listener’s response determines whether there has been a “true threat” of violence.

A number of First Amendment advocates filed briefs in support of Elonis’ position that he was exercising his First Amendment right to speech and that his comments were posted in an art form. One unique brief sent into the Court went through the origins of hip hop, meaning of lyrics, and explained how rap is an art form. As interesting and unique as this issue is for the Court, the question is how will this decision affect working people of Maine? The short answer is, regardless how the Court rules, it will likely have no real impact on working people. The reason – most working people have minimal if any First Amendment protection. Most employees are considered employees at will meaning that their employer can terminate them for any reason as long as their decision is not because of the employee’s age, gender, race or any other protected characteristic.

While the constitution guarantees the right to free speech, the First Amendment protects individuals against governmental action not against action by private citizens. Typically, employees who work for a private company or organization are not accorded any First Amendment protection.

The one area that has been protected, however, is if a worker is posting anything considered “concerted activity” – which would involve discussing unionizing, or plans to organize group action to make working conditions better.  The National Labor Relations Board found that concerted activity qualifies for protection under the right to unionize.

This is a tricky area, though, and there are many shades of gray. It is important for workers to be careful if they begin posting about their workplace on social media. A private employer could terminate a private employee if the post did not fall under the right to unionize protection.

For example, the NLRB determined that a bartender’s post to Facebook criticizing the employer’s tipping policy and complaining about customers was not protected. That bartender was fired. The Board found that the termination did not violate the NLRA as his posting were not considered “concerted activity” – had been no discussions with coworkers about the conditions of employment, no employee meetings or attempt to initiate a group action about the tipping policy.

All workers should exercise common sense when posting comments on any social media site. Employees should not make threats, should refrain from making any comment that amounts to a personal vendetta against their employer and refrain from discussing anything that is considered confidential in nature as they would likely be terminated – even if those comments are made in rap lyric format.

As I wrote this blog, I tried to recall what my favorite rap lyric was and one lyric came to mind. A lyric by my daughter taken from a Jay-Z song, “I’ve got 99 problems, but my Mom ain’t one.” As for you workers out there, you may have 99 problems, don’t make one more by posting stuff on Facebook your employer may not like.

About the Author: Karen Bilodeau is an attorney and partner at the workers’ rights law firm, McTeague Higbee. She can be contacted at 207-725-5581 or

Karen Bilodeau

About Karen Bilodeau

Karen is an attorney and partner at the workers' rights law firm McTeague Higbee. A cum laude graduate of the University of Maine School of Law and a magna cum laude Bates College graduate, Karen brings passion and caring to every case she handles. Throughout her career she has found incredible satisfaction in giving clients a voice - and helping get their lives back on track - by standing with them and guiding them through the legal process. Karen is a member of the Maine State Bar Association, the American Association for Justice, the Workers Injury Law & Advocacy Group and the Maine Employment Lawyers Association.