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.

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.

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."

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.

 

You can read the case at State of Tennessee v. Smith (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."

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.

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.