Black Lives Matter
Blue Lives Matter
Make America Great Again
Defund the Police
Nickelback is an awesome band!
Take your pick. Feel triggered? Welcome to 2020.
Despite it being a presidential election year, with high levels of unemployment, with a novel/deadly virus among us, income inequality on the rise, social unrest, violent protests in the streets…things seem to be awesome.
In all seriousness, there’s plenty of fuel out there to feed your fire. People that were once sensible adults are now mindless zombies sharing the nuttiest of memes. Some of it’s good, some of it’s insane. Dig into your Facebook or Twitter feeds and you can almost sense that the algorithms are designed to trigger outrage. This is great for clicks and attention. And of course, the outrage is great for mindshare, which translates into great seeds for harvesting ad revenues.
QUESTION: Should network marketing companies monitor social media accounts of their distributors to ensure “acceptable” behavior? As a good lawyer, I’m going to give a very unsatisfactory answer: it depends.
But the First Amendment!
Congress shall make no law . . . 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.
The First Amendment rights are sacrosanct in this country. The right to share opinions freely without the threat of coercion is a bedrock of democracy. It’s one of the things that makes our country unique. It’s a principle that I take very seriously. I’ve seen the dramatic impacts frivolous lawsuits can wreak on people over their exercise of legitimate free speech. I put my money where my mouth is. When distributors have been sued in the past for posting “disparaging” content, we’ve taken several cases on a pro-bono basis. So far, we’ve been 100% successful in getting those cases resolved in our clients’ favor. In most cases, the founders of companies that authorize the lawsuits are just insecure, gutless morons trying to bully people (sometimes disabled, sometimes military veterans) into submission.
Do Distributors Have a Right to Voice Legally Permissible / Controversial Political Opinions?
Yes and no.
Yes: Distributors can say what they want to say. The First Amendment protects our rights to say whatever we want without retaliation FROM THE GOVERNMENT.
No: Distributors can be terminated for exercising their First Amendment right. The First Amendment does NOT restrict a company’s ability to terminate distributors from controversial speech. The First Amendment states that “Congress shall make no law….” It says nothing about what Arbonne can do (or Facebook, or Twitter, etc., etc.).
Can Companies Police Political Speech? Should they?
The short answers: yes and probably no.
In the Policies and Procedures of almost EVERY company in the industry, there are various provisions that relate to the decorum and behavior of the distributors. This can be found in a “Code of Ethics” or buried somewhere in the Policies and Procedures under a provision titled “Inappropriate Content Prohibited.” What is considered “inappropriate”? Using Arbonne’s policy as an example, they define it as: “The determination of what is Inappropriate Content shall be determined by Arbonne in its sole discretion, and offending Arbonne Independent Consultants will be subject to disciplinary action/or deactivation.” In other words, “Inappropriate Content is whatever we say it is.” I’m not picking on Arbonne as their “inappropriate content” policy is pretty standard across the industry.
Grace or Law?
People are losing their minds. This trend will likely continue until November 3, 2020, and possibly for months thereafter depending on the outcome. I have had numerous clients ask what they can and/or should do when it comes to distributors sharing content online that seems a little nutty, or content that offends certain groups of people. Candidly, it’s entirely up to the company to set the tone as for the sort of behavior they want to see in the field. But companies need to understand that if they’re going to wade into those waters and discipline people based on their social media content, they need to be prepared to be consistent. And enforcing subjective standards consistently is difficult. Just ask a parent with multiple children. Being consistent is difficult because a post might be offensive today based on the news cycle, but it might not be offensive tomorrow.
In summary, hang in there. We’re all doing our best to make sense of the messy world. And when this anxiety gets communicated publicly, it might not be articulate or carefully crafted. I recommend companies show a bit more grace and hold off on the law. But….if they’re going to “lay down the law” and police content, they need to be prepared to publish some standards and consistently enforce those standards.