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Monday, December 30, 2013

Teacher Fired over Facebook Photo Could Get Job Back

From the Employer Handbook blog comes an interesting case involving the termination of a teacher for posting a photo of her boyfriend touching her chest on her Facebook page.  According to the story, the teacher appealed her termination, and the grievance board determined she should be reinstated, finding that the lack of a social media policy gave teachers very little guidance on the type of social media conduct that could get them in hot water. 

You can read the story here:  Teacher fired over Facebook groping photo could get her job back

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, December 26, 2013

Student Social Media Passwords Protected Under New Law

On January 1, 2014, HB 64 becomes effective making it unlawful for an Illinois school to ask for a student's social media password.  There are a few exceptions to the ban that would allow access if the school has reasonable cause to believe the student's account includes evidence that the student has violated a school rule or disciplinary policy.  Schools are also allowed to monitor student activity on school equipment and enforce policies on use of school electronic equipment.
 
Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, December 17, 2013

Florida Social Media Ethics Rules Challenged by Law Firm

A Florida law firm filed a lawsuit against the Florida Bar challenging the state attorney ethics rules. Specifically, the firm claims that recent amendments to the attorney advertising rules to now include social media sites violate the firm's First Amendment rights and are unconstitutionally vague.
 
In Searcy v. Florida Bar, the law firm of Searcy, Denney, Scarola, Barnhart & Shipley claims that the new rules are overly restrictive as they require all statements on social media to be "objectively verifiable." The new rules became effective in May, after the Florida Supreme Court approved the amendments to the advertising rules that removed a previous website exemption from the advertising rules.
 
The law firm had recently been found in violation of the "objectively verifiable" rule for certain opinions and statements about the firm's services and past cases on its website. The Florida Bar also found the firm's LinkedIn profile in violation because the subjective opinion of a former client was not "objectively verifiable" and because the LinkedIn site automatically described the firm's practice areas as "specialties."
 
The law firm claims that the rules are too vague to apply, and it isn't clear what information is allowed and what information must be removed from its website and social media sites.  The law firm claims that under the new rules, even Abraham Lincoln would have been found in violation:
 
"Indeed, Florida's rules are so broad that they would have subjected Abraham Lincoln to discipline for stating, in an 1852 newspaper advertisement, that his firm handled business with 'promptness and fidelity' — two words that are no more 'objectively verifiable' than those the Bar concludes violate its ethics rules here."
 
Although the case is challenging Florida's attorney ethics rules, it is a case worth watching by lawyers and law firms across the country.  This blog has raised questions about how LinkedIn's specialty and endorsement features might trigger compliance issues with attorney ethics rules, including advertising and certification restrictions, and the New York bar has already weighed in on this issue, finding that law firms could not list specialties on its LinkedIn profile.

Monday, December 16, 2013

Officer's Termination for Facebook Venting Upheld

A federal judge has ruled against a former police officer who sued the City of Greenville, claiming that City officials violated her free speech rights by firing her over comments posted on Facebook. Grazios v. City of Greenville.   The officer's comments criticized Police Chief Cannon's decision not to send representatives from Greenville's police department to the funeral of an officer who was killed in the line of duty earlier that month.
 
She posted her comments to both her personal Facebook page and the Mayor's campaign page. Her Facebook postings included the following:
"I just found out that Greenville Police Department did not send a representative to the funeral of Pearl Police Officer Mike Walter, who was killed in the line of duty on May 1, 2012. This is totally unacceptable. I don’t want to hear about the price of gas–officers would have gladly paid for and driven their own vehicles had we known the city was in such dire straights (sic) as to not to be able to afford a trip to Pearl, Ms., which, by the way, is where our police academy is located. The last I heard was the chief was telling the assistant chief about getting a group of officers to go to the funeral. Dear Mayor, can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty? Thank you. Susan Graziosi."
 
"Dear Mayor, can we please get a leader that understands that a department sends officers (to) the funeral of an officer killed in the line of duty?"

She was fired for violations of discipline and accountability, insubordination and rules of conduct, as laid out in Greenville Police Department's policy and procedure manual.
 
The district court judge first considered whether the officer spoke as a citizen on a matter of public concern, requiring two separate questions: (1) was the subject of her speech a matter of public concern and (2) did she speak as a citizen rather than an employee. In this case, the judge ruled that the officer's comments were "made from her perspective as a disgruntled police officer, not a concerned citizen."
 
According to the judge, the officer "did not speak out about any issue that related to the public safety or trust they had in the GPD but rather an internal decision of the department." As a result, the officer's comments were not afforded First Amendment protection, and her retaliation claim was dismissed.

Monday, November 25, 2013

Legal & Ethics Conference in Indianapolis

On December 4, 2013, blog author Julie Tappendorf will present a session on the legal and ethical issues with government use of social media at the Legal & Ethics Conference in Indianapolis.  500 state government lawyers and other government officials are expected to attend the conference, including the Indiana Governor, Lt. Governor, Attorney General, and Inspector General. among others.

Wednesday, November 20, 2013

NLRB Upholds Termination of Teen Center Employees for Facebook Posts

In reviewing cases involving employee discipline or termination for social media conduct, the National Labor Review Board distinguishes between an employee simply griping about his job or employer or co-workers engaging in protected concerted activity.  As a general rule, the employer can discipline or even terminate the griping employee in the first circumstance but must proceed more cautiously in the second. 

In a recent ruling, however, the NLRB upheld the termination of two teen center employees for their Facebook conversation.  Although the ALJ found the employees were engaged in protected concerted activities, their conversations were not protected because they could harm the employer's reputation and the safety of the teens served by the organization. 

Monday, November 18, 2013

Employee's Termination for Derogatory Facebook Posts Upheld

Government can regulate its employee's speech on social media sites without offending the First Amendment. In Shepherd v. McGee, (D. Or. Nov. 7, 2013), an employee sued her former employer, the Oregon Department of Health Services, alleging First Amendment retaliation under Section 1983. Specifically, she alleged she was fired because of derogatory Facebook comments she made in violation of her First Amendment rights to free speech.
 
The plaintiff was employed as a child protective services worker who determined child custody cases. On multiple occasions, she posted to her Facebook derogatory remarks about individuals on public assistance, including the following post:
I was listening to the radio and they were making up rules for society. Here are my rules: (1) If you are on public assistance, you may not have additional children and must be on reliable birth control (e.g. an IUD), (2) If you've had your parental rights terminated by DHS, you may not have more children.... it's sterilization for you buddy! (3) If you are on public assistance and don't pay taxes, you shouldn't get taxes back from that child tax credit[,] (4) If you are on public assistance, you may not own a big flat screen television, (5) If you receive food stamps, you should be limited on what you may purchase (no more ribeye steaks, candy, soda, chips, etc), (6) If you physically abuse your child, someone should physically abuse you, (7) I should be president so I can make up more rules, (8) If you don't like my rules, too bad. I have a Ph.D. and you don't so I get to make up my own imaginary rules.
After an investigation, DHS fired the plaintiff, and she sued.

In ruling in favor of DHS against the employee, the court looked at "whether the state had adequate justification for treating the employee differently from other members of the general public." The court agreed that the state had adequate justification for treating the plaintiff differently by firing her.
 
First, the court agreed with DHS that her posts irreparably impaired her ability to perform her duties, since every time she appeared in court to testify on a CPS matter, she would immediately be impeached by the defense attorney. In fact, DHS had already concluded that the employee's Facebook posts would prevent her from ever being called as a witness prospectively, even though she had been doing so 6 to 8 times per month as part of her job responsibilities.
 
Second, the court agreed with DHS that the Facebook posts caused disruption in the workplace sufficient to warrant her firing. Specifically, as a result of the Facebook posts, two coworkers doubted plaintiff's ability to be effective in her role. This was considered by the court to be sufficient evidence of a "substantial disruption" in their working relationships.
 
Finally, the court noted that the speech was not at the core of the First Amendment nor had it been disseminated to a wider audience, although the court noted that even if plaintiff's speech met either or both of these tests, the balance would still tip in the employer's favor. 

Wednesday, November 13, 2013

Plaintiff's Termination for Facebook Post Upheld

After an employee was fired from his job as a teacher's aide at a preschool center, he sued claiming that the center violated his civil rights by discriminating against him because he was male and for defamation.  The center claims the plaintiff was fired because of derogatory comments he posted on his Facebook page about a family situation (his boss at the center was also his mother).  The district court ruled in favor of the center, finding that plaintiff did not provide any evidence that the firing was a pretext for discrimination.  The Seventh Circuit Court of Appeals agreed, upholding the ruling in favor of the employer.  Smizer v. Community Mennonite Early Learning Center (7th Cir. Oct. 25, 2013)(unpublished opinion).
 
Although the decision was not published, it provides some guidance to employers who may be hesitant to take any action with respect to social media activities because an employee can simply deny having posted a particular comment.  In this case, the center could not provide actual evidence of the social media posting; nevertheless, the court found that the employer believed that the plaintiff wrote the post, providing the center with a legitimate basis for the firing.  The court concluded that plaintiff did not carry his burden to show that the purported reason for this firing (the Facebook post) was a pretext for gender discrimination.
 
Hat tip to Employment Law Matters for reporting on this case.

Monday, November 11, 2013

Police Officer's Facebook Posts Not Protected Speech

In an unpublished opinion, the 11th Circuit Court of Appeals recently addressed a police officer's lawsuit against the City of Atlanta alleging that the chief failed to promote the officer in retaliation for a comment she posted on Facebook criticizing another officer.  Gresham v. City of Atlanta (11th Cir., October 17, 2013). 
 
The officer had posted a comment on her personal Facebook page criticizing a fellow officer for interfering in an unethical manner with plaintiff's investigation of a suspect for alleged fraud and financial identity theft.  Although the officer's Facebook page's privacy settings allowed only "friends" to view posts, her comments found their way to the City's police department's office of professional standards.  Plaintiff was investigated for an alleged violation of the department's work rule requiring that any criticism of a fellow officer be directed through official department channels, and not be used to the "disadvantage of the reputation or operation of the Department or any employees."  Plaintiff argued that the reason she was not promoted when eligible was in retaliation for her comments, which were being investigated at the time of departmental promotions.  The City argued that she was not promoted because department policy prohibited any promotions during pending disciplinary investigations.
 
The district court ruled in favor of the City, and dismissed the officer's Section 1983, First Amendment lawsuit.  The 11th Circuit agreed, applying the four-part Pickering test for employee speech requiring the court to determine whether (1) plaintiff's speech involved a matter of public concern; (2) plaintiff's interest in speaking outweighed the government's legitimate interest in efficient government service; (3) the speech played a substantial part in the government's challenged employment decision.  If plaintiff establishes the first 3 prongs, then she will prevail unless defendants can prove that (4) they would have made the same employment decision even in the absence of protected speech. 
 
Here, the court determined that the government's interest in avoiding disruption outweighed plaintiff's interest in speaking on this matter.  Furthermore, plaintiff violated a clear departmental rule in commenting on a fellow officer outside of official department channels.  Finally, the court determined that plaintiff's speech interest was not a strong one, and merely reflected "venting her frustration with her superiors."  Thus, the appellate court agreed with the district court's decision to dismiss plaintiff's claims against the City. 

Monday, November 4, 2013

Making the Switch to Feedblitz

I've been blogging for a little over two years on Municipal Minute and about a year on this blog, Strategically Social.  All bloggers understand the importance of "getting the word out," and I'm no exception.  Shortly after starting Municipal Minute, I began using Feedburner to "push" or deliver my blog posts to email subscribers.  Feedburner was easy to set up and once I input my scheduling preferences, it didn't require anything more from me.  
 
Everything worked quite well until a month or two ago, when I noticed that I was not getting regular email updates from my own blogs.  Although I was posting daily on Municipal Minute and weekly on Strategically Social, at least once or twice a week, I was not getting the blog post delivered via email.  I reached out to a few of my email subscribers and learned that some were experiencing the same inconsistency while others continued to receive all email updates.  I couldn't find any solution on Feedburner's forums nor was Feedburner responding to my requests for help.  It was time to change.
 
After much research, I chose to switch to Feedblitz.  I must not be the only former Feedburner customer to make that choice, because Feedblitz has put together a "Feedburner to Feedblitz" migration guide that walks you through each step of the process of moving your subscribers over to the new service.  I hit a few snags with the integration process (first, I had to learn what migration and integration meant - I'm a lawyer, not a techie after all) but Feedblitz support was so helpful - customer support promptly responded to every email I sent with helpful tips on getting everything working.  Within 30 minutes, I had all of my email subscribers for both blogs switched over and within a day or two most of my RSS subscribers are coming over too.
 
So, all in all, this process has been fairly painless.  There are a few things about Feedblitz that I'm not crazy about, but unreliable service is no longer an issue fortunately.  First, you have to pay for Feedblitz where Feedburner is a free service (some would say you get what you pay for).  Second, those who subscribe by RSS directly through Feedburner cannot be automatically migrated over to Feedblitz - you have to "encourage" them to switch over.  Three, you can only link one Twitter account to your blog feed, meaning that you may still have to use a third party service like Tweetfeed for multiple Twitter accounts.  On the other hand, Feedblitz provides the user with a lot more data than Feedburner.  My first blog post using Feedblitz was delivered seamlessly.  You can send messages to your email subscribers through Feedblitz without posting on your blog.   
 
I'm still figuring it all out, and it may take a week or two to get used to the new service and to learn all of the new features. 
 
 

Thursday, October 31, 2013

84% of Local Governments Have a Social Media Presence

According to a recent study conducted by the International City/County Managers' Association (ICMA), 84% of local governments responding to the survey have a social media presence.  The benefits of social media for governments include the ability to quickly and inexpensively communicate on upcoming meetings, activities, events, and projects important to residents and others.  
 
You can read more about the survey on the ICMA website at Eighty-four Percent of Local Governments Have a Social Media Presence | icma.org.

Wednesday, October 30, 2013

Ethical Advertising Rules Apply to Lawyer's Blogs

Lawyers are subject to a variety of rules of professional conduct, including restrictions on advertising.  These rules of professional conduct differ from state-to-state, and are often enforced by the state supreme court, state bar association, or state attorney disciplinary commission or association. 
 
The Virginia Supreme Court recently considered a case involving a state bar association investigation of an attorney's blog where the author discussed a variety of legal issues and cases.  Most of the cases discussed on the blog involved cases in which the attorney obtained favorable results for his clients.  The state bar association had ruled that the blog constituted advertising under the Virginia Rules of Professional Conduct and violated three separate professional rules of conduct.  First, the bar association determined that the blog violated Rule 7.1 of the Virginia rules prohibiting a lawyer from making "a false or misleading communication about the lawyer or the lawyer's services."  Second, the attorney violated Rule 7.2 because his blog posts about specific client results did not include prominent disclaimers.  Third, the bar found a violation of Rule 1.6 on the grounds that he disseminated client confidences without their consent. Based on these three violations, the bar association ordered the attorney to remove case-specific content for which he had not received client consent and to post a disclaimer on all case-related posts
 
The attorney appealed to the Virginia Court of Appeals, claiming that the blog constituted political speech, not commercial speech, so it was not subject to the advertising requirements. The court of appeals overturned the bar's ruling that the blog violated Rule 1.6, finding that the information was all public information and the attorney had First Amendment rights to report on what happened in a courtroom.  However, the court of appeals did find that the blog posts were commercial, rather than political, speech and required the attorney to post the following disclaimer:  "Case results depend upon a variety of factors unique to each case.  Case results do not guarantee or predict a similar result in any future case."
 
On appeal, the supreme court agreed with the court of appeals that the attorney did not violate client confidentialities in reporting on public case information.  The court also affirmed the court of appeals ruling that the speech was commercial, not political, and therefore subject to the advertising requirements.   The supreme court also upheld the disclaimer requirement for case-related posts. 
 
The attorney appealed to the U.S. Supreme Court, which denied certiorari. 
 
You can read the case here, and a detailed analysis of the case on the American Bar Association's website

Wednesday, October 23, 2013

Monday, October 7, 2013

Advertising and Promotions on Social Media

The cover article in this month's Practical Law The Journal, Transactions & Business (October 2013) is definitely worth a read for corporations and other businesses using social media to advertise or promote their business and activities.  The author of the article titled "Advertising and Promotions in Social Media" is Gonzalo E. Mon, a lawyer practicing in the area of advertising law. 
 
The article acknowledges the benefits of social media marketing, including reaching a larger audience more quickly and at a lower cost than traditional advertising.  The bulk of the article, however, cautions companies advertising their goods and services or running a marketing promotion about the risks and potential liability associated with advertising and marketing in social media.  These risks include legal issues relating to advertising claims and disclosures, endorsements and testimonials, and contests and sweepstakes, among others. 
 
The article states two basic principles of advertising law:
 
  1. Advertisers must have a reasonable basis to substantiate the claims they make in their ads.
  2. If disclosures are required to prevent a misleading ad, they must appear in a clear and conspicuous manner.
The article includes a number of tips for social media promotions, including the following:
 
"Planning Promotions in Social Media
 
When planning a promotion in social media, companies should:
  • Ensure compliance with contest or sweepstake laws, as applicable
  • Ensure compliance with any rules established by the platform on which the promotion will run
  • Think through the potential legal and other issues and take steps to guard against them.
  • Consider the Risks and benefits of turning over some control to customers
  • Enter into contracts with any third parties that may be assisting the company with any aspects of the promotion" (Gonzalo E. Mon, "Advertising and Promotions in Social Media," p. 50)
The most valuable tip provided in this article is that companies must remember that laws governing ads and promotions apply equally to social media advertising as the laws apply to other platforms.

Wednesday, September 25, 2013

City Council Bans Social Media During Meetings


The Rochester City Council recently enacted a ban on tweeting and other social media activities during City Council meetings. The policy came after one of the city council members tweeted about a council discussion of a vacant house that had become a public hazard. After concerns were raised about the appropriateness of the tweets, the mayor suggested that the council members impose the ban.  You can read more about the ban and see the inappropriate tweets here
 
Rochester isn't the only government considering or adopting similar bans. Some government boards have found that social media activities by members can be distracting during meetings. Others are concerned that these activities might implicate open meetings laws. In Illinois, electronic communications during meetings (even on privately-owned devices) are subject to release under the Freedom of Information Act, leading some Illinois governments to adopt policies prohibiting or discouraging social media or other electronic communications by board members during meetings.

Thursday, September 19, 2013

A Facebook "Like" is First Amendment Speech

Last year about this time, I reported on a case in Virginia where the judge held that clicking "like" on a candidate's Facebook page was not protected speech under the First Amendment.  Bland et al. v. Roberts.  That case involved employees of the local sheriff who supported the sheriff's opponent in the election.  To the employees' misfortune, their supported candidate lost the election, and the sheriff terminated them.  The employees sued, claiming that the sheriff retaliated against them in violation of their First Amendment rights by terminating them for engaging in protected speech activities - in this case, clicking "like" on the candidate's Facebook page.  The district court judge ruled in favor of the sheriff, finding that the mere action of clicking "like" on Facebook was not "speech."  You can read the original blog post on the Municipal Minute blog here.
 
The employees appealed to the U.S. Circuit Court of Appeals, Fourth Circuit.  That court issued its opinion today reversing the district court and finding that the employees did engage in protected speech activities in their conduct on the sheriff's opponent's Facebook page. Bland v. Roberts (U.S. Court of Appeals, 4th Cir. September 18, 2013). 

First, the court reviewed the Supreme Court political speech retaliation cases in determining which of the employees were protected and which employees were exempt as occupying a "policymaking or confidential position."  Under the Supreme Court's decisions in Elrod v. Burns and Branti v. Finkel, a public employee who has a confidential, policymaking, or public contact role has substantially less First Amendment protection than a lower level employee.  The purpose of the Elrod-Branti test is to ensure loyalty with employees in certain policymaking or confidential positions.  In this case, the court determined that the plaintiff deputy sheriffs were not in policymaking positions where their political allegiance to the sheriff was a job performance requirement. 

Second, the court looked at the conduct of the employees to determine whether their activities (supporting the sheriff's opponent on the opponent's Facebook page) were a substantial motivation for the sheriff's decision not to reappoint the employees.  The court looked at the sheriff's conduct as well, including his statements to employees that those who openly support his opponent would lose their jobs, and specifically referencing his disapproval of the decision of some employees to support his opponent's candidacy on Facebook. 

Third, the court addressed the question whether the employees' activities were speech.  As noted above, the district court had ruled that merely clicking "like" on Facebook was not speech.  The appellate court disagreed with the district court, stating that "clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement."  (emphasis added).  Particularly in this context, clicking "like" on a candidate's Facebook page sends a message that the user approves the candidacy.  The court found this to be pure political speech, as well as symbolic expression - a "thumbs up" symbol that the user supports the campaign by associating the user with it.  As the court noted, liking a candidate's campaign page "is the Internet equivalent of displaying a political sign in one's front yard." 

Finally, the court addressed the sheriff's argument that he is entitled to qualified immunity for not reappointing the employees.  The court determined that the sheriff is entitled to qualified immunity concerning the claims of the three sworn deputy sheriffs, because a reasonable sheriff could have believed he had a right to choose not to reappoint his sworn deputies for political reasons, including the deputies' support of his opponent.  However, qualified immunity only applies to the employees' money damages claims, not their reinstatement claims.

One justice issued a concurring/dissenting opinion, disagreeing with the majority's ruling applying qualified immunity to the sheriff's actions.  The dissenting justice stated that the sheriff should be held accountable for political retaliation.

Monday, September 16, 2013

Nurse Fired for Facebook Posts Shared by Coworker "Friend"

Today's lesson?   Your Facebook friends may not turn out to be so "friendly" so think carefully before accepting or making "friend requests."  

A nurse and paramedic at a non-profit hospital maintained a Facebook page with privacy settings that limited access only to her Facebook friends. Although the nurse did not list any hospital supervisors as "friends," she was Facebook friends with several of her coworkers.  One of those coworkers turned out to be less than "friendly" when he shared with hospital management the following statement posted by the nurse on her Facebook wall in 2009:
An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice.
Shortly after the nurse's coworkers took a screenshot of the post and showed it to a hospital manager, the nurse was suspended with pay.  She filed a complaint with the National Labor Relations Board (NLRB), but lost when the NLRB ruled in favor of the hospital. Two years later, after the nurse had accrued an extensive number of disciplinary "points," the hospital terminated her.   The nurse then filed a lawsuit in the district court of New Jersey against the hospital, challenging her termination on a variety of grounds, including violations of the Federal Stored Communications Act (SCA) and Invasion of Privacy relating to her Facebook postings from 2009.   Ehling v. Monmouth Hosp. Serv. Corp., (U.S. Dist. Ct. NJ, August 20, 2013).

With respect to the SCA claim, the court first determined that her Facebook posts were covered under the SCA because the communications were private based on the security settings on her Facebook account.  However, the court applied the "authorized user" exception to the nurse's posts because the coworker who accessed and shared the Facebook postings with hospital management provided the communications voluntarily to hospital management, and was not coerced or pressured to provide this information. The coworker was determined to be an "authorized user" because he was a Facebook friend of the nurse's. Therefore, the hospital was not liable under the SCA.

With respect to the nurse's claim that the hospital violated her right to privacy in accessing her Facebook account, the court found no intentional invasion by the hospital because the information was voluntarily provided by the nurse to the coworker, who in turn voluntarily provided it to hospital management.  
 
In finding in favor of the hospital on all counts, the court concluded that there "may have been a violation of trust, but it was not a violation of privacy."

Thursday, September 12, 2013

Murder Conviction Vacated After Facebook Communication Between Juror and Witness

At the beginning of the murder trial of the defendant, the judge instructed the jury that they should not to talk to any witnesses, the defendant, or attorneys.  Nevertheless, one of the jurors (who knew the medical examiner through work) sent the witness a number of Facebook messages after her testimony.  The messages included the following:
 
Juror to Witness:  " I thought you did a great job today on the witness stand....I was in the jury...not sure if you recognized me or not!" 
 
Witness to Juror:  "I was thinking that was you. There is a risk of a mistrial if that gets out."
 
The witness notified the trial judge of the juror's communications.  Although the judge informed the lawyers of the communications, the judge did not allow the defendant's attorney to question the juror about the communications.  After the defendant was convicted of first degree murder, his attorney moved for a new trial based on the juror's communications and the judge's denial of his request to question the juror.  The appellate court denied the defendant a new trial, characterizing the Facebook communications as "mere interactions" between a juror and a third person. 
 
The state supreme court disagreed with the lower courts, finding that the judge should have conducted a hearing to determine whether the juror's communications with the witness was prejudicial to the defendant and his right to a fair trial.  The court acknowledges that the majority of cases dealing with juror communications were handed down long before social media and Facebook.  With new technology, and the ease of internet research, jurors are more likely to conduct their own research and investigations, increasing the risk of communications between jurors and third parties.  For that reason, the supreme court held, it is even more critical that judges address these third party communications prior to sending the case to the jury and risking a prejudicial outcome.  In this case, the supreme court determined that the trial judge should have immediately conducted a trial in open court after learning of the misconduct to have the juror and witness testify about their relationship and the effect of the communication on the juror's ability to serve on the jury. 
 
While the supreme court acknowledged that not every communication between a juror and a third party requires a judge to disqualify the juror, declare a mistrial, or grant a new trial, there was insufficient information in this case to determine whether any of these actions were necessary to ensure a fair trial. As a result, the supreme court remanded the case back to the trial judge to conduct a hearing.
 

Tuesday, September 10, 2013

Student Can Be Disciplined for Off-Campus Social Media Activities

A high school student was suspended from school following a school district hearing because of threatening social media posts and text messages.  The student’s conduct included threatening to shoot people at the school and raping students, along with racist, sexist, and anti-Semitic comments. Friends of the disciplined student had raised concerns about the messages with a high school coach, who brought the allegations to the principal.  After the school district suspended the student for 90 days, the student and his father sued the school, administrators, and county under Section 1983 for violation of the student’s First Amendment rights.  The district court ruled in favor of the county. 
 
The Ninth Circuit Court of Appeals affirmed the district court, citing the U.S. Supreme Court ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist.  Wynar v. Douglas County School District, No. 11-17127 (9th Cir. Aug. 29, 2013). Under Tinker, schools can prohibit speech that "might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities or that collides with the rights of other students to be secure and to be let alone."  Here, the court had no trouble finding that it was reasonable for school authorities to foresee a substantial disruption of school activities and act based on the student’s speech.  Specifically, the Court held "[w]hatever the scope of the 'rights of other students to be secure and to be let alone,' without doubt the threat of a school shooting impinges on those rights. [Wynar's] messages threatened the student body as a whole and targeted specific students by name. They represent the quintessential harm to the rights of other students to be secure."

Thursday, September 5, 2013

New Jersey Passes Social Media Privacy Law

I have reported in the past on state laws protecting employee social media privacy, including social media password laws adopted by Illinois and Colorado.  Just last week, New Jersey Governor Christie signed legislation that prohibits employers from requiring employees and job candidates to disclose social media usernames and passwords, similar to the bans adopted by 11 other states.  New Jersey's law is different from other states in one important area, however - the law exempts public safety employers (including the department of corrections, state parole board, county corrections departments, and state and local police departments) from the law.  New Jersey employers can require employees to provide business-related social media passwords, to conduct investigations to ensure compliance with laws and policies, and to view and use information available in the public domain. 
 
A previous version of this bill had been approved earlier this year, but was vetoed by Governor Christie, who proposed a variety of changes that were incorporated into the enacted law. 
 
You can read the new law (and see the changes that were incorporated from the introduced version of the bill) here.

Tuesday, September 3, 2013

Lawyers, Law Firms, and LinkedIn

LinkedIn is often described as the social media site of choice for professionals, especially lawyers, who may be concerned that Facebook and Twitter are too casual for serious marketing efforts.  LinkedIn is a great forum for lawyers to market themselves and their practices and connect with other lawyers and professionals without their message getting lost somewhere between pictures of cats and kids on their first day of school. 
 
Attorneys, however, must be constantly aware of their ethical obligations in using social media sites, even professional sites such as LinkedIn.  I wrote about this issue previously on the blog after the American Bar Association published an article raising concerns about the ethical implications of the "specialty" and "endorsement" features on LinkedIn.  Although there hadn't been an opinion or case dealing with this issue at the time of the ABA's article, New York has since weighed in on this issue in a recent Bar Association ethics opinion.
 
A New York law firm had requested an opinion from the New York State Bar Association's Committee on Professional Ethics as to whether it was ethical for the firm to use the "specialties" section of the online profile to describe the type of legal services the firm provides.  In a formal ethics opinion, the Committee determined that law firms could not list "specialties" on a LinkedIn profile of the law firm.  Individual attorneys, however, could list "specialties" in their profile but only if the lawyer had been certified in that area of the law by an appropriate organization or governmental entity.  Listing a specialty without being appropriately certified would be a violation of NY Ethics Rule 7.4(a), which prohibits a lawyer from stating that he or she is a specialist or specializes in a particular area of the law unless they are properly certified.  That same rule applies to law firms.
 
The problem with this opinion is that LinkedIn's "one size fits all" online profile does not take into consideration the special ethical obligations of lawyers or law firms.  Lawyers and law firms are cautioned to check their own state ethical rules to determine whether a similar rule is in place in their jurisdiction and modify their profiles accordingly.

Thursday, August 22, 2013

Social Media and the HIPAA Privacy Rule


Now might be a good time to reacquaint yourself and your employees about potential HIPAA privacy violations through social media.
A former Northwestern student is suing Dr. Vinaya Puppala, Northwestern Memorial Hospital, and the Feinberg School of Medicine for invasion of privacy and infliction of emotional distress, alleging that Dr. Puppala took pictures of her in the ER while she was being treated for "overconsumption of alcohol." At the time of the incident, Puppala was a fellow in the Multidisciplinary Pain Medicine Fellowship Program at Feinberg which is associated with Northwestern Memorial. Puppala came to see the plaintiff after a mutual friend told him she had been admitted into the ER. Puppala requested access to her medical records and then returned several hours later to take photos of the plaintiff "while she was on the hospital bed, crying, and attached to an IV." Security saw Puppala taking pictures and asked him to delete them immediately, but Puppala refused. Later, he uploaded the photos with comments to Facebook and Instagram. Four individuals recognized the plaintiff in Puppala’s photos. Plaintiff is suing for $1.5 million in compensatory and punitive damages. 
A civil tort suit may be just the beginning. The hospital and physician could potentially be subject to possible HIPAA sanctions. Unlike common tort claims for the invasion of privacy, a HIPAA claim does not require proof that a patient sustained actual harm or damage; evidence of a violation is enough to impose fines and corrective action. Thus, a HIPAA claim could prevail even if the plaintiff's suit proves unsuccessful.
 
The HIPAA Privacy Rule protects any information that can identify a patient which is related to the patient’s past, present, or future physical or mental health condition –including health services provided. The rule applies to physicians and hospitals alike. Full face photographs and images constitute protected patient information. Furthermore, health care professionals may only access patient information if he is directly involved in the patient’s care. A violation occurs if the information is communicated or sent to others with no official need. HIPAA penalties include sanctions, orders for corrective action, and monetary damages. Civil penalties range from $100 to $50,000 or more per violation, capping out at $1.5 million per calendar year for multiple violations of the same requirement. Criminal penalties for intentional violations where the individual willingly knows, obtains, and discloses protected patient information include a minimum $50,000 fee and up to one-year imprisonment.
 
The Office of Civil Rights (OCR), within the Department of Health and Human Services, officially enforces the HIPAA Privacy Rule. However, HITECH (the Health Information Technology for Economic and Clinical Health Act) authorizes the State Attorney General Offices to bring civil actions and obtain monetary damages on behalf of its residents for violations of the privacy rules. Thus, the Illinois Attorney’s General Office could file a complaint with the OCR against Dr. Puppala and Northwestern Memorial even if the plaintiff in this case elects not to. 
 
Currently, there’s been no mention of administrative action against the defendants, but the potential is there. Assuming the facts are true, sharing photos of a patient to whom Puppula was not medically responsible for over a social networking site could arguably constitute a HIPAA privacy violation. Additionally, a case could be made to impose criminal penalties on Puppula since he willingly and knowingly disclosed protected patient information.
 
So what’s the big take away? Besides the painfully obvious – but it bears repeating anyway, clinicians shouldn't take pictures of their patients and post them on social media sites – compliance officers should incorporate social media issues into HIPAA training. A good number of today’s rising health care professionals are members of the Facebook generation where the oversharing of information is the norm. Thus, a key component to HIPAA instruction should include a discussion on privacy violations that can be made through social media, texting, and other online platforms like personal and professional blogs. Additionally, compliance officers need to emphasize why social media-HIPAA compliance is critical not only for patient care but to protect one’s professional livelihood.
 
Post Authored by Joy Austria and Julie Tappendorf, Ancel Glink

Tuesday, August 13, 2013

Lawyer Disciplined for Advising Client to Clean up Facebook Page

A lawyer in Virginia had his law license suspended last month for five years after he advised his client to clean up his Facebook page.  The lawyer was representing a plaintiff in a lawsuit brought against a driver who allegedly caused the death of his wife.  Shortly after the defense filed discovery requests for screen shots and other information from the plaintiff's Facebook page, the Virginia lawyer instructed his paralegal to tell the client to delete certain photos.  The defense lawyers recovered the deleted photos before trial, and the lawyer was brought before the state bar disciplinary board for violation of ethical rules governing candor toward the tribunal, fairness to opposing party and counsel, and misconduct.  

Thursday, August 8, 2013

Teen's Conviction of Harassment for Facebook Post is Upheld

A Pennsylvania court recently upheld a teen's conviction for the crime of harassment after she appealed the jury verdict against her. Commonwealth v. Cox.  The 18 year old had posted a comment on her Facebook page that the 15 year old victim "has herpes, Ew, that's gross. She should stop spreading her legs like her mother." The post received several "likes" from Cox's friends before it was deleted. The victim's mother reported the post to police, and the 18 year old was charged with the crime of harassment, which makes it illegal to communicate "to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures" with the intent to harass, annoy, or alarm the other person.  A jury found the teen guilty of harassment, and sentenced her to 6 months probation.
 
The teen appealed, and the appellate court upheld the conviction, finding that the evidence was sufficient to support the verdict and that the defense provided no evidence that the posting was for any other purpose than harassment of the victim.  “Contrary to Cox’s view and in light of the totality of the evidence, her misuse of the internet and social media was criminal,” the appellate court ruled.

Wednesday, July 31, 2013

Google Must Identify Anonymous Blogger in Defamation Suit

A New York attorney who was the subject of online harassment from anonymous bloggers who created two websites directed at the attorney (frederickschulmancrookedattorney.com and stopfrederickschulman.blogspot.com) succeeded in obtaining an order to compel Google to produce the names and email addresses of those who registered the blogs, as well as the IP addresses for the two blogs.  The attorney had filed a defamation lawsuit against the anonymous bloggers and was seeking their identities through court discovery procedures.  A New York Supreme Court judge ordered Google to contact the users and notify them that they have 15 days to object to the disclosure. 
 
In one of the blogs, the blogger calls the attorney and his firm "shady lawyers" and claims the firm is guilty of "illegal activities" and mistreatment of people.  The author of the stopfrederickschulman.com blog (whose occupation is listed as "stopping corrupt lawyers") defends his postings by stating that they are opinion only and, therefore, protected by the First Amendment to the U.S. Constitution.  The blogger states that he or she is "only exercising my right to speak freely and any decision you make should not be influenced by anything read on this blog, what you do is up to you!!!"
 
This is not an unusual order from a court.  A few years ago, a Cook County, Illinois circuit court ordered Comcast to release information regarding the identity of an anonymous online commenter in connection with a defamation lawsuit filed by a Buffalo Grove Village Trustee.  The test applied in that case was similar to that applied by the New York judge - whether the petitioner has alleged sufficient facts to support a establish a meritorious cause of action and that the information he or she seeks is necessary to the case. 
 
While anonymous speech is provided some protection under the First Amendment to the U.S. Constitution, that protection is not limitless.  If a plaintiff can establish a meritorious claim for defamation against an anonymous speaker, the speaker's anonymity may be short-lived as courts continue to order internet service providers to uncloak online speakers' identities. 

Thursday, July 25, 2013

Virtual Manners: Is it Ok to Unfriend, Ignore, Delete, or Untag?

Many in the millennial generation (and probably some Gen-X'ers) may be unfamiliar with the name Emily Post. Baby boomers, on the other hand, grew up with her advice on good manners in any situation. "What would Emily Post do?" was an often-heard response when an individual questioned how he or she should react or communicate in an unfamiliar situation. As old-fashioned as the phrase "good manners" may seem, they are as important today as they were many years ago, and maybe even more so with the increased use of technology for communications.
 
Even Emily Post (through her family business) recognizes that we communicate, socialize, interact, and conduct our business and social lives differently today because of changes in technology. She has created a social networking presence on her website and social media sites where she Tweets, Facebooks, and blogs about good manners. The emilypost.com website contains a wealth of information on social networking and manners, with the following tagline: "Virtual manners are a must when navigating these networks, however, especially because your interactions may be viewed by others."
 
One post that is particularly interesting and helpful for business people is titled "Rejecting a Client's "Friend" Request." This is a sticky issue for many who aren't sure how to navigate this issue. So, what would Emily Post do? Her advice is as follows:
Your new client just asked to "friend" you. You prefer not to mix your work and social lives, but you don't want to risk hurting a budding business relationship. Should you turn down her invitation to network?
 
Yes. It's wise to keep work and play separate. Maintain a profile on a business-oriented site, such as LinkedIn or Biznik, so you can send her a "friend" request. When you do, say, "This is where I stay in touch with work associates. I hope you'll like connecting here."
Emily Post also tells us that it is perfectly acceptable to unfriend, unfollow, or ignore someone that makes you uncomfortable. In her words, it's okay to:
  • Ignore a friend request.
  • Untag yourself from a photo or ask someone to remove a photo of you from their page.
  • Delete a friend’s comment on your page.
  • Unfriend someone whose presence on your page makes you uncomfortable.
  • Ignore quizzes, groups, and widely marketed event requests.
  • Use privacy settings to restrict access to your page
  • Some days it can feel as if our lives have been taken over by social networking, as we all spend more time on Facebook, Twitter, Instagram, Pinterest, and blogs. Every morning, we receive new requests to friend and follow new people and share and like new content. Navigating these requests in a careful and thoughtful way, using "virtual manners," can be difficult, even for the most savvy social networker. In any situation where you question whether you are posting appropriate content or making the right decision in accepting a friend or follow request, ask yourself one question: "What would Emily Post do?" It may save you the trouble of having to unfriend, ignore, delete, or restrict someone or something in the future.
     
     

    Friday, July 19, 2013

    City of Chicago Offers Free Social Media Boot Camp For Businesses

    The City of Chicago will host a free Social Media Boot Camp throughout August to help entrepreneurs and business owners maximize social media strategies. The sessions will be held weekly, each Friday morning in August starting at 9:30 a.m. at City Hall.  The free boot camp sessions include the following topics:

    8/2 - Twitter for the Technology Challenged
    “What is Twitter? How do I use it for my business? What is a hashtag? I am so confused!” These are questions and a statement that is probably swirling around in your head. It is OK. You are not alone. Twitter is confusing for even some of the technology advanced. It is more about a mentality, than it is about being technology savvy. Anyone can do it. You just have to understand how it works. In this workshop, you will learn the basics of Twitter, how to use it effectively for your business, and how to get in the press by using it.

    8/9 - How to Use LinkedIn Effectively to Grow Your Business
    Online networking is a very powerful resource that any small business can use to expand their business influence. At this hands-on workshop you will learn how to use LinkedIn to open and customize your personal and business page, as well as many tips and tricks you can use to build a growing strong network. Unleash the power of social media and start enjoying the benefits.

    8/16  - Facebook and Business Do Mix
    Learn how to maximize the tools that Facebook offers to maximize your business needs. Whether you sell a product or provide a service, learn some tricks that can cost effectively give your business positive results.

    8/23 - Your Business Website for Smartphone Users: Optimize it or Create a Business App?
    A majority of business websites look completely different on Smartphones compared to desktop computers – why is this? Learn how to optimize your website for Smartphone users and answer the biggest question, do we need an App? The answer might surprise you.

    8/30 - Increase Your Sales by Using YouTube
    Video is a powerful tool to help you build relationships with prospects and customers and enable them to learn about your company’s solution. Did you know that digital video consumption grew 30% year over year in Q4 2012? Learn about integrating YouTube content into your marketing and selling process. You don’t even have to produce video to use YouTube to grow your business. This workshop will discuss integrating third party content into your internet environment, tips on creating and using simple content, and working with a content creator to position your expertise.

    You can obtain more information about the City's Social Media Boot Camp on the City of Chicago's website.

    Wednesday, July 17, 2013

    ICMA Provides Blogging Tips for City Managers

    Cities and other local governments are discovering the benefits of social media, including blogs. The International City/County Management Association (ICMA) just published an article titled Top Blogging Tips for City Managers | icma.org, that provides City Managers with a few tips for getting started in the blogosphere.  The article points out the importance of blogging with a purpose, and among other tips.  The following is a summary of the article's tips, or you can read the entire article on the ICMA's website here.
     
    1. Know and say why.   Every blog needs a purpose.  A local government blog will serve to inform and educate constituents on matters at hand.  The sooner you publicize your mission statement, the better people will understand your blog and want to follow along.
    2. Create an editorial calendar.  An editorial calendar is vital to scheduling weekly posts and topics to stay organized and on track.  
    3. Utilize guest posts.  Hosting a member of your local government or expert in his or her profession to virtually-appear on your blog to write a guest post provide a different or new perspective about a situation or issue.
    4. Create a spotlight.  Highlight members of your community who are actively making a difference and promote their cause.  In addition to bringing your government issues to the light, this is the perfect time to showcase charitable causes or campaigns that are occurring in your community.  
    5. Involve your youth.  It’s hard to deny that Millennials have a natural understanding of the virtual environment.  Give opportunities to young people to gain experience and use their social networking skills to promote local government.

    Monday, July 15, 2013

    Getting Started: Social Media 101

    Businesses, large and small, are learning that social media marketing and promotion is crucial in today's market, especially with the younger demographic.  But, maybe your business hasn't jumped on the bandwagon yet.  Maybe it relies solely on "tried and true" marketing methods such as print media, business cards, newsletters, and the like.  If your company's reluctance to dip its toes in the social media marketing pool is because it doesn't know where to start, here are a few tips:
     
    1.  Pick the Right Social Media Platform
     
    Just because "all" companies are on Facebook doesn't mean that's the right platform for your business.  There is no one-size-fits all approach to selecting the appropriate social media platform or platforms.  If you are just starting out, set aside an hour or so on your calendar to visit three social media sites to see what they offer.  Check out what your competitors are doing, especially those who have been successfully using social media for at least a year or more.  Talk to your peers about their experience on a variety of sites - what works and what doesn't.  Then, sign up for one site, and stick with it for a few months before choosing additional platforms. 
     
    2.  Adopt a Social Media Policy
     
    Every business should have a social media policy in place that addresses two issues:  (1) employee usage of social media and (2) the company's social media activities.  You can read more about what should go into a social media policy by revisiting this blog post titled "9 Tips for Drafting an Employee Social Media Policy." 
     
    3.  Start with LinkedIn
     
    LinkedIn is a great starting point for professionals and companies to start.  It's a great place for businesses and professionals to network and "connect" with others without a lot of the more personal content encountered on Facebook and Twitter.  It's also easy to set up a LinkedIn profile and start "connecting."  Businesses and professionals can immediately find users to connect with through their email contact lists, and join groups and organizations that broaden their networks. 
     

    Wednesday, July 10, 2013

    Job Candidates Beware - Hiring Managers Are Checking You Out

    The Employer Handbook blog posted a great story on employer use of social media in screening and hiring decisions.  According to the article, a recent study by CareerBuilder.com found that the number of hiring managers who are reporting that a job candidate's social media indiscretions have cost them a position is up nearly 10%.   The study suggested that hiring managers use social media to get a glimpse at the candidate’s behavior and personality outside of the interview, and are most interested in professional presentation and how the candidate would fit with the company culture.

    As I have reported on this blog before, the negative effect of "oversharing" on social media cannot be overstated.  Think before you post.  You might also "Google" yourself on a regular basis to find out what the internet is saying about you.

    You can read the full blog post here:  The six social media faux pas that may cost you that big job

    Monday, July 8, 2013

    Do You Use Twitter Lists? 6 Simple Steps to Creating Lists

    Twitter lists can be a very useful way to control the stream of information, or tweets, that you receive on your Twitter feed, particularly if you follow a wide variety of people, groups, or organizations.  You can organize Twitter users into lists so you can more easily monitor different networks of friends, organizations, and interests.  Setting up a list allows you to view only the stream of Tweets from people included in that list.  For example, you could create a list called "News" and that would allow you to quickly review any Tweets from news organizations you might follow without having to scroll through your entire feed.  You don't even need to follow a person or organization to add them to a list.

    Lists are easy to create, and it is even easier to add users.

    Step 1:  Click on the "me" icon on the top of your Twitter home page.


    Step 2: Select "Lists" in the box in the upper left hand corner.


    Step 3:  Select "Create list."


    
    Step 4:  A new window will open.  You can enter the name of your list, a description (optional), and indicate whether the list is public (anyone on Twitter can follow the list) or private (only you can access the list).


    Step 5:  To add a Twitter user to a list, select a user, then select the downward arrow on the icon on the right.  Select "add or remove from lists" from the pull-down menu.


    Step 6:  You can then add a person to a list by selecting the empty box next to the desired list.  A checkmark will appear in the box.  Then, close the window to save. 



    Wednesday, July 3, 2013

    8 Tips for Using Twitter More Effectively

    Twitter can be a great addition to your social media marketing program.  The primary benefit of Twitter is that it allows users to easily share information about themselves and their business without the time-management and third party content concerns often associated with some other social media sites such as Facebook.  However, like any other marketing program, Twitter is only effective if you are an active participant.  The following are 8 tips for active Twitter use:

    1.  To maintain or establish an audience of loyal followers, you should tweet frequently.  A Twitter account associated with a business or company without frequent tweets may create the image that the business is not active.  This activity can include retweets of other Twitter users' tweets that might be relevant to your own followers. 
     
    2.  You should seek out and follow other Twitter accounts in your industry.  This can generate increased awareness of your Twitter account, particularly when those industries have an established Twitter base of followers with shared interests.
     
    3.  You should also seek out and follow Twitter accounts owned by current clients or customers.  These users can be your best supporters by retweeting your tweets to other users, who may then follow you on Twitter.
     
    4.  You should upload your business logo for your company Twitter account, rather than use the picture of one of your employees, to increase your profile and brand on social media. 
     
    5.  You should consider customizing your Twitter background/theme to reflect your business or company. 
     
    6.  You should place a link to your Twitter account on your website, blog, and other online sites to increase cross-traffic between your social media sites.  You might also include links to Twitter and your other social media accounts in your e-mail signature.
     
    7.  You should designate one employee to tweet on behalf of the company or to oversee and review other employees' tweets before they are sent out, to ensure that the company message is being accurately and appropriately presented. 
     
    8.  Don't forget to insert a written profile of your company in the "bio" secction of your account profile, with links to your company website and any required industry disclaimers.
     

    Tuesday, July 2, 2013

    Trial Lawyers Should Study Up On Social Media - Lessons from the Zimmerman Trial

    The Employer Handbook blog posted an interesting video from the Zimmerman trial where a witness is questioned about her Twitter account, and why she "follows" George Zimmerman's brother.  This video provides a good lesson for lawyers who should study up on social media, including proper social media terminology or "jargon", before making it an issue in their case at trial.

    Check out the video at the following link:  George Zimmerman trial lessons: How not to use social media

    Wednesday, June 26, 2013

    School District Sued by Student for Use of Facebook Photo

    As part of a seminar presentation on the risks of social media, a Georgia school district used as an example a photo from a student's Facebook page showing the student in a bikini standing next to a cardboard cutout ad for "Blast," a malt liquor beverage, with the title "Once it's there, it's there to stay." The former student (she is now a Freshman in college) sued shortly after learning that her image had been used by the district.  She claims that she only thought friends and friends of friends could see the photo, and that she had not given permission to the school district to use her photo in the presentation.   She is asking for $2 million from the school district, arguing that the school district violated federal law, state law and the student's constitutional rights, and that she did not give up her rights by posting images on Facebook.
     
    The school district may not have made the wisest decision in using a student's photo without her permission, but it remains to be seen how the district's conduct rises to the level of a constitutional violation.
     
    You can read more about the case on WSBTV.com at: Administrator uses student’s bikini photo in Internet safety...

    Tuesday, June 25, 2013

    Juries and Social Media

    Anyone who has watched Perry Mason, Law & Order, or Private Practice knows that jurors are not allowed to talk about the case with anyone (including family members) while the trial is going on, and particularly not during jury deliberations.  Yet, we have cases like the one in Arkansas where a defendant’s capital murder conviction was overturned on appeal because one of the jurors had been “tweeting” during the trial and jury deliberations.  The juror’s activities were discovered during the trial, and the trial judge admonished, but did not replace, the juror.  The defendant was subsequently convicted of robbing and shooting a teenager after a party.  The defendant’s lawyer appealed the conviction, arguing that the juror’s tweets violated the trial judge’s instruction not to post on online or otherwise communicate with anyone about the case.
     
    The state supreme court overturned the conviction, stating that “Because of the very nature of Twitter as an online social media site, [the juror's] tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.”  The appellate court pointed out that one of the juror’s followers was a reporter, and so media had advance notice that the jury had completed its deliberations before an official announcement was made to the court.
     
    Courts are usually unwilling to overturn verdicts because of juror misconduct as it is often difficult to demonstrate that the misconduct had a prejudicial impact on the defendant.  In this case, the appellate court’s decision was based on the juror’s failure to follow the judge’s instructions rather than any prejudicial impact from the juror’s tweets.
     
    Although courts have been reluctant to place widespread bans on jurors’ use of mobile phones and other electronic devices during trial, it is becoming routine to instruct a jury on social media as part of the judge's instructions to the jury.  For example, a recent jury instruction in a district court case included the following:
     
    Court's 26: Outside Communications:
    During your deliberations, you must not communicate with or provide information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.
     
    We are probably going to see more of these cases, which could ultimately lead to the adoption of stricter regulations, and even full scale bans, on the use of electronic devices in the courtroom.  Some courts already have enacted these type of bans.  For example, the circuit court in Cook County, Illinois prohibits people from bringing in cell phones and electronic devices to the criminal court building.  Interestingly, jurors are exempt from that ban, as are attorneys, police officers, government employees and others.      

    Monday, June 24, 2013

    Different Rules for Government Use of Social Media

    I just returned from presenting two sessions on local governments and social media at the Arkansas Municipal League conference in Hot Springs. The first session was directed to municipal officers, and the second to municipal attorneys. I started both presentations with a summary of the benefits of government use of social media.  It's not hard to sell local governments on the benefits of social media. They recognize that social media is a cost-effective and efficient way to disseminate information and engage citizens in government business.  Municipalities, school districts, park districts, and other local governments are taking to social media like gangbusters - posting about local events on Facebook, tweeting about road closures, and uploading their meetings to YouTube. 
     
    So, why do I feel like the bad guy after I present a session to local government officials and attorneys about social media?  
     
    Probably because the bulk of my presentation (and all of the questions from the audience) deal with the legal and ethical issues with government use of social media.  Everybody enjoys hearing the "pros" about social media, but it's not as much fun to hear the "cons."  I happen to love potato chips, and wish I could eat them every day.  But, like everyone else, I have heard the "cons" about eating too much junk food.  Well, sometimes I feel like the "junk food police" for social media, telling government officials all the bad things that can happen if they eat too many potato chips (i.e., conduct themselves inappropriately on social media).   
     
    Just like corporate and individual users, governments encounter many of the same legal and ethical issues when they engage in social media activities, including copyrights, individual privacy, employee usage and monitoring, among others. There are, however, a number of issues that are unique to governments, such as First Amendment protections, compliance with Open Meetings and Freedom of Information laws, and record retention requirements, just to name a few.  
     
    An individual who doesn't like a particular comment on their Facebook page can simply delete it.  A municipality, on the other hand, must consider whether that comment is constitutionally protected speech before taking any action that could be considered censorship.   Members of a corporate board aren't concerned about triggering statutory "meeting" requirements when they participate in an online discussion, unlike their government board counterparts who could inadvertently trigger these requirements simply by posting comments to Facebook.  Governments must also ensure that their constituents have equal access to government information, including information provided electronically and digitally.  The rules are simply different for local governments engaging in social media communications, making it that much more important that municipal officials and employees understand what those rules are, so they can adjust their social media activities and conduct accordingly.
     
    In a perfect world, a local government would carefully draft a social media policy to deal with employee monitoring and usage, administration of the sites, terms of use for commenters and other users before they establish a presence on a social media site.  That same local government would also conduct training session for municipal officers, department heads, and employees about appropriate use of social media before they "go live."  That doesn't always happen, of course.  It's not too late to get a policy on the books, and train your employees. 
     

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