Aug. 12, 2026 – According to the Pew Research Center, social media use is ubiquitous in the United States. 84% of adults use YouTube, 71% use Facebook, and 50% use Instagram.
When it comes to the workplace, it can be difficult to know what kinds of social media activities are protected by law, and which are not. The collision of free speech and privacy rights in the age of cyberspace can create a potentially tricky landscape. This article provides some useful starting points for your research.
State and Federal Statutes
Framing any discussion of speech online is the constitutional right to free speech, which is enshrined in both the U.S. and Wisconsin Constitutions. Those clauses can be found in Article I, Section 8, Clause 1 of the U.S. Constitution and in Article I, Section 3 of the Wisconsin Constitution. They will be particularly relevant to researching public-sector employment issues, as opposed to private-sector employment.
Franky Newcomb is a reference and instructional services librarian at Marquette University Law School. They are a current member of the Law Librarians Association of Wisconsin.
While reading the constitutional provisions themselves won’t shed much light on how they’ve been applied by courts, starting with the provision is a great way to jump into case law research by looking at annotations listing cases decided under that provision. This can be an effective way to find the most important cases earlier in the research process.
For freely available online annotations to the U.S. Constitution,
search this database available through Congress.gov or
this database maintained by Cornell Law School. The Wisconsin State Legislature website’s
Constitution landing page provides links to its own
Annotated Wisconsin Constitution.
Both state and federal laws are relevant to privacy and free speech on social media:
The Social Media Protection Act, codified at
Wis. Stat. section 995.55, restricts access to some social media information by employers, landlords, and educational institutions.
The Wisconsin Fair Employment Act, codified at
Wis. Stat. section 111.31, while not directly related to social media, protects employees from discrimination based on protected characteristics that may be discoverable from social media profiles.
The Stored Communications Act,
codified at 18 U.S.C. § 2701, protects the privacy of communications stored by service providers such as social media companies.
The National Labor Relations Act,
codified at 29 U.S.C. §§ 141-191, protects the right of employees to engage in “concerted activities” for mutual workplace benefit, including on social media.
Agency Websites and Materials
Both federal and state agencies have regulations, guidance, and decisions that interpret and apply the statutory law listed above.
The National Labor Relations Board (NLRB) website provides a
brief description of "protected concerted" activities on social media. To access Administrative Law Judge (ALJ) Decisions of social media activity, use the
NLRB cases and decisions database to search the full text of all ALJ decisions, or use the
NLRB CITENET topical index.
The NLRB also maintains a
database of recent charges and petitions filings, which would be most helpful to search if the researcher knows the case being sought, as text searching is not currently available within that database.
The Wisconsin Department of Workforce Development (DWD) website is a good place to find information about Wisconsin social media law. The
DWD’s Overview page describes the law and how it applies to employers, landlords, and educational institutions.
There is a
link to file a complaint with the DWD, which is investigated by the Equal Rights Division (ERD), as well as a
description of the complaint process and available remedies. To access decisions that have come out of the ERD complaint process, use the
ERD Decision Digest and navigate to “Internet Privacy Protection Act” under the Table of Contents.
Employee Handbooks, Terms of Service, and Community Guidelines
Whenever researching social media law, it’s important to consider private law as well. When researching employment issues, employee handbooks and company social media policies may create rights and obligations.
The policies of the social media company itself could be relevant. Because social media companies are private entities that have been recognized as having their own free speech rights, those companies can place certain limits on speech on their platforms.
Specifically, the terms of service and community guidelines that users agree to when signing up for an account may be relevant to your research.
Here is a nonexclusive list of policies for several of the most popular social media companies:
For an in-depth discussion of free speech and the regulation of social media content and First Amendment protections online,
check out this 2019 memo published by the Congressional Research Service.
Secondary Sources
Secondary sources are a great resource both for beginning research and for diving deeper once you have a grasp of the laws at play. The intersection of social media, free speech, and privacy law has been written about extensively by lawyers and other researchers and there are a host of good resources.
State Bar of Wisconsin PINNACLE© books cover these topics from various angles.
Wisconsin Employment Law includes discussions on cases deciding issues under the Stored Communications Act, employers’ use of social media to screen candidates, and the statutory right to privacy in Wisconsin, among other related topics.
Hiring and Firing in Wisconsin is also a good source for learning more about the statutory right to privacy in Wisconsin, as well as NLRB decisions where employee use of social media was argued to be protected concerted activity.
Other books covering the way these topics overlap are
Free Speech in the Digital Age by Susan J. Brison and Katherine Gelber,
Social Media Law and Ethics by Jeremy Harris Lipschultz, and
Free Speech and the Internet by Albert Karcsi.
Need Help? Ask a Law Librarian
Have questions about researching social media, free speech, and privacy laws more generally? Don’t hesitate to reach out to a friendly law librarian – we’re experts at navigating the ins and outs of legal research and are happy to help! You can find law librarians ready to assist you at these Wisconsin libraries:
