Entrepreneur Elon Musk, who owns what I will continue to call Twitter, posted the following tweet on Saturday:
I’ll skip by the Contracts 101 chestnut that covers under what circumstances courts will view a promise of this sort made to the general public as constituting an enforceable contract. I’ll also skip the question of how often Musk has himself fired employees for posting things on the platform, since he presumably doesn’t regard the treatment in those episodes as unfair.
I will, however, make a few other points:
- Under the American legal rule of employment at will, most disgruntled employees fired over social media postings lack a sound legal basis to sue. Not every perceived unfairness generates a valid lawsuit; in fact, most don’t.
- Conservatives and libertarians should view that background rule of employment at will as a good thing worthy of our respect. If you work for a private employer and it finds something you wrote on social media to be detestable, hateful, or racist, it should have a right to pull out of the relationship, just as you have the same right to disassociate yourself from a hateful employer. That’s what freedom of contract is supposed to mean.
- As Eugene Volokh of UCLA points out, a number of laws have abrogated employment at will in part to authorize suits over at least some such firings. In particular, a smattering of states and cities have established political opinion or speech about elections as a protected class in employment discrimination law, so in those places some complainants may have a legally valid claim. A firing might also be in violation of a union contract, and there are a scattering of other theories—construing employee handbook language as binding, for example—-that may cover some other private-employer situations. By the same token, even where there is some legal bar to firings based on political expression, some cases will predictably fail because a court finds the social media posting in question to interfere with legitimate employer interests. It might repel customers or co-workers, or personally mock and deride the CEO, or reveal confidential corporate information, or not in fact express a political or electoral opinion.
- Volokh, exercising interpretive charity, parses Musk’s language about “unfairly treated” as promising to fund only cases with actual legal merit under prevailing local law. I’m not sure that’s the most natural reading of “unfairly treated,” since most of us assess whether something is unfair separately from the question of whether the law provides a remedy against it. If you assume that second reading, then Musk is offering a blank check to fund some kinds of suits whether legally meritorious or not. If so, that’s … really something.
- The “intermeddling of a disinterested party to encourage a lawsuit,” known as “maintenance,” was unlawful at common law. The old prohibitions on lawyers or laypersons stirring up litigation have mostly departed from the American legal scene, a story I’ve told before.
In my opinion, however, it remains wrong to promote the prosecution of meritless lawsuits, whether the motive is to glamorize and publicize one’s own social media platform, or to harass and inflict costs on perceived culture war opponents. So I hope that isn’t what Musk’s doing.
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