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Meta quietly banned abortion talk among Facebook workers in 2019. Is that even legal?

May 20, 2022, 7:52 PM UTC

As the U.S. awaits the Supreme Court’s official ruling that might overturn Roe v. Wade following a bombshell leak earlier this month, companies have begun scrambling to figure out how to react.

While some have issued public statements affirming their general support of essential reproductive health care, others have pledged to help affected workers access the procedures they need if the court strikes down the law, mostly by paying for any travel costs they might accrue. Currently, 13 states have “trigger laws” enacted that would immediately outlaw abortion with Roe’s overturn.

Meta, however, has been limiting its employees’ discourse around the topic since 2019, according to internal company policy viewed by the Verge.

Meta’s “Respectful Communication Policy” prohibits employees from posting “opinions or debates about abortion being right or wrong, availability or rights of abortion, and political, religious, and humanitarian views on the topic” on an internal communications tool called Workplace, the Verge reported. 

Is it legal for a company to explicitly forbid discourse around a specific topic, or at all?

“As a general proposition, the First Amendment protects individuals only against government restrictions on speech,” says Len Niehoff, a professor at the University of Michigan Law School who teaches First Amendment law. “Private employers can, and often do, impose restrictions on what employees may say inside the workplace.”

Meta’s policy is aimed to counter the risk of the workplace becoming a “hostile work environment,” according to the Verge, which found that the company does not restrict discourse around other recent politicized topics, including Black Lives Matter, trans rights, or immigration.

Niehoff adds that some employers restrict speech outside of the workplace as well, and can do so without running afoul of the First Amendment. He says that collective bargaining agreements achieved through unionization can win private employees greater communication freedoms than they might otherwise enjoy.

But he said it’s possible Meta’s policy could be interpreted as contrary to anti-discrimination legislation, although that would have to play out via litigation. “I can imagine an employee arguing that it is gender discrimination to single out for censorship an issue so strongly connected with women’s health,” he says. “Whether those claims would have any merit would depend on the law applicable in a particular case.” 

He adds that these policies are not uncommon, and are enacted to regulate speech likely to hurt an employer or disrupt a workplace. They typically prohibit employees from engaging in discriminatory or harassing speech, from disclosing company secrets or from publicly saying disparaging things about the employer, he says.

Meta would likely defend its policy by claiming it hopes to maintain a collegial workplace and avoid the distractions that come with divisive topics, according to Niehoff. 

Still, “Meta’s step strikes me as an unusual one,” he says.

Meta did not immediately respond to Fortune’s request for comment.

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