Town Bans Negative Social Media Postings

According to Bloomberg Businessweek, the town of South Pittsburg, Tennessee recently adopted a social media policy that bans people from posting negative comments on social media.  The policy applies to all city elected representatives, appointed board members, employees, volunteers, vendors, contractors and anyone associated with the town in an official capacity. The policy states that those persons cannot post anything negative on social networks about the city, its employees or associates. It also prohibits any posting that would be considered defamatory or libelous. 

The mayor has defended the policy by saying it is necessary to protect employees and their families from release of sensitive information such as employees' salaries or police officers' schedules.  One of the town commissioner's defends the policy as follows: “The first thing everyone wants to say is, ‘I can’t post anything on Facebook. Well, you can. Just not [anything] that sheds a negative light on any person, entity, board, or things of that nature.”

Those of you who regularly read this blog may be shaking your collective heads, wondering if this small town of 3,000 people have ever heard of the First Amendment.  I would certainly be cautious about advising a local government about the potential constitutional implications of enacting a ban on critical or negative postings on social media.  

Sheriff Sued Over Social Media Policy

We've reported on a number of NLRB decisions striking down social media policies for being too broad because they regulate protected employee conduct.  Although the NLRB doesn't apply to local government employees, public employees are still entitled to certain protections for their social media activities.  

When a government goes too far in regulating the social media activities of its employees, there are constitutional implications in addition to labor rights.  The former is the subject of a case filed against the Harris County Sheriff (HCSO), where employees allege that a social media policy violated their First Amendment right to free speech.  

The following are a few examples of policy provisions that have been challenged:

• An employee's actions must never bring the HCSO in disrepute
• Personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of the HCSO
• Personnel shall not post any information pertaining to any other member of the HCSO
• Employees cannot engage in negative speech about the HCSO

It will be worth watching this case to see how a court deals with a government social media policy - there are a lot of NLRB decisions on private employers, but very little guidance for government employers (the few cases that have been filed have mostly settled).

You can read the complaint here:  Pittman v. Garcia (S. Dist. Texas, 2014).  

Post Authored by Julie Tappendorf

Lawyer Suspended for Facebook Message

The Kansas Supreme Court has suspended a Kansas City lawyer because of a Facebook message that the court deemed was “emotional blackmail.”  You can read the opinion here: opinion  

The lawyer had represented a biological father opposed to the adoption of his daughter. He posted a message on Facebook to the mother urging her to revoke consent to the adoption to “get rid of the guilt and standup and do what is right.”  The attorney also posted the following:

I can’t begin to explain how beautiful and wonderful parenthood is....I have a little girl myself and she is my world just like you are your dad’s world. [The baby] deserves to know her parents. She deserves to know that you love her and care for her as well. Do not let this opportunity pass you by because you will live with this decision the rest of your life and [the baby] will know someday what happened.

The attorney's Facebook message also included a form for the woman to sign and notarize to revoke the adoption.

His client lost his case, and the adoption was finalized in July 2013.  Subsequently, he was brought up on disciplinary charges for the social media postings.  A hearing panel stated that his “intentional bullying tactics” reflect on his fitness to practice law, and recommended a 60 day suspension.  The board ultimately imposed a six-month suspension.

Supreme Court Heard Facebook Threat Case Last Week

Last week, the Supreme Court heard the case of a man who threatened to kill his wife on Facebook.  U.S. v. Elonis.  After Anthony Elonis lost his wife and job in 2010, he expressed his frustrations on social media.  Specifically, Elonis made repeated threats on Facebook to his ex-wife, law enforcement, and others. 

One of his Facebook posts is as follows:

Did you know that it's illegal for me to say I want to kill my wife?

It's illegal.

It's indirect criminal contempt.

It's one of the only sentences that I'm not allowed to say.

Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.

He also posted the following : 

If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.

After receiving a complaint, the FBI began monitoring his Facebook postings, and Elonis was subsequently arrested and charged with transmitting to interstate commerce communications containing a threat to injure the person of another, a violation of federal law.  He was convicted by a jury and sentenced to 44 months in prison. 

Elonis appealed his conviction.  He argued that the lower courts erroneously applied an objective, rather than subjective, test in determining whether his Facebook postings were protected under the First Amendment.   Under that test, if his statements are considered a "true threat," then the postings are not protected speech under the First Amendment and his conviction would stand.  If they were not a “true threat” (Elonis’ argument), then they are protected speech, and his conviction would be overturned.  

Elonis argues that because he did not subjectively intend his Facebook posts to be threatening, he should not have been convicted.  The trial court and the 3rd Circuit Court of Appeals, however, used an “objective” standard to determine whether his postings to be “true threats,” finding that his Facebook posts were speech that is so clearly objectionable, any objective listener could be scared.  The issue before the U.S. Supreme Court is whether the true threats exception to speech protection under the First Amendment applied in this case, and whether the lower courts applied the proper test.

Post Authored by Julie Tappendorf

Employer Social Media Bashing

From The Workplace Report with Ancel Glink: NLRB Draws the Line on Employer Social Media Bashing: 

We've posted in the past about "employees behaving badly" on social media.  Many of these cases end up at the National Labor Review Board.  Although the NLRB doesn't have jurisdiction over local governments, Illinois public sector labor boards do look at NLRB precedent in applying the Illinois Labor Relations Act and the Illinois Educational Labor Relations Act, so it's worth being familiar with these NLRB decisions.  

In a recent ruling, the NLRB said "enough is enough" to two seasonal employees of a not-for-profit youth organization in San Francisco.  The NLRB upheld an administrative law judge’s dismissal of a complaint against the Richmond District Neighborhood Center when is failed to rehire two seasonal employees. The employees had previously met with their supervisor to share comments and criticisms about the organization. Later, two of the employees, Moore and Callaghan, exchanged critical comments about the Center on Facebook, including the following:

Moore: I’m goin’ to be a activity leader I’m not doing the t.c. let them figure it out and they start loosin' kids I ain’t help'n HAHA.

Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like being their bitch and making it all happy-friendly middle school campy. Let’s do some cool sh*t, and let them figure out the money. No more Sean. Let’s f**k it up. I would hate to be the person taking your old job. 

Moore: I’m glad I’m done with that its to much and never appreciated so we just go be have fun doing activities and the best part is WE CAN LEAVE NOW hahaha I AINT GON BE NEVER BE THERE even tho shawn gone its still hella stuck up ppl there that don’t appreciate nothing. 

Callaghan: You right. They don’t appreciate sh*t. That’s why this year all I wanna do is sh*t on my own. Have parties all year and not get the office people involved. Just do it nd pretend thay are not there. I’m glad you aren’t doing that job. Let some office junkie enter data into a computer. Well make the beacon pop this year with no ones help. 

Moore: They gone be mad cuz on Wednesday I’m goin’ there add tell them my title is ACTIVITY LEADER don’t ask me nothing about the teen center HAHA we gone have hella clubs and take the kids. 

Upon reviewing the Facebook exchange, the Center decided not to rehire these employees. The employees filed a charge with the NLRB claiming that they were not rehired as a result of their protected activity in criticizing their employer. The ALJ found in favor of the employer and determined that the employees’ grossly insubordinate behavior was outside of the protection of the Act. The NLRB agreed with the ALJ  that the employees had engaged in concerted action, but that they had forfeited any legal protection under the NLRA when they made comments indicating that they intended to be uncooperative or insubordinate to their employer.

The NLRB agreed with the ALJ that it is well established that employees (whether unionized or not) have a right to engage in concerted activity for their mutual aid or protection, and employees  “may take action to spotlight their complaint and obtain a remedy.” When Callaghan and Moore joined with other employees to describe their complaints to a supervisor, they were engaged in protected concerted activity, the ALJ found. The NLRB agreed with the ALJ though, that notwithstanding the employee’s right to air their complaints, these employees went too far when their comments evidenced a plan to disrupt operations of the Center and to engage in insubordination. The Center was able to show that it would suffer if the employees were rehired because it would jeopardize grants and other funding of the organization. Ultimately, the NLRB agreed with the ALJ’s finding that the concerted activity was not protected.

This ruling draws a "line in the sand" for employees. They can be critical of their employer, but they can’t have protection if their comments reflect insubordinate activity, especially if that would jeopardize operations of the employer. 

Read more about this ruling on The Workplace Report here.

Police Officer Put On Leave for Social Media Comments

A City of Elgin, Illinois police officer has been placed on paid administrative leave for allegedly making objectionable comments on social media relating to Michael Brown, the Ferguson MO teen shot to death by a police officer last month.  According to news reports, he posted the following on Facebook: 

Hmmm … innocent victim my (expletive). Did society a favor.

It is not clear whether the officer's statement violated a City or police department social media policy; news reports reference statements by City officials that the officer's actions were “inconsistent with departmental standards.” 

Nursing Home Sued for Imposing a Visitation Ban for Social Media Posts

Children of a nursing home patient recently filed a lawsuit against their mother's nursing home for banning them from the facility for their social media posts. The lawsuit claims that the nursing home sent a letter to the children offering to restore their visiting privileges if they “agree to immediately remove all pictures, videos, blogs, comments, articles, postings or other invasive and/or exploitive content depicting or relating to Ruby Peterson and/or any other resident of Silverado Senior Living – Sugar Land immediately.”  The letter also required the children and their attorney to “further agree to refrain from creating any additional pictures, video, blogs, comments, articles, postings or any other exploitive content depicting or relating to Ruby Peterson and/or any other resident of Silverado Senior Living – Sugar Land, assisting or encouraging others to post such content and providing others such content until the conclusion of all legal issues between the parties by settlement agreement, judgment or otherwise” in a separate case where the children are fighting to remove their mother from the facility.

The lawsuit claims that the revocation of their visitation rights was an unconstitutional retaliation in violation of their First Amendment rights and the ADA.  The children ask the court to award them compensatory damages up to $500,000 for "severe mental and emotional distress and anxiety and bodily pain and suffering" and punitive damages.

Employees' Facebook Discussion Protected by Labor Laws

On August 22, 2014, the National Labor Relation Board issued a new decision involving employees and social media.  In Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), the NLRB ruled that a Facebook discussion regarding an employer’s tax withholding calculations and an employee’s “like” of the discussion constituted concerted activities protected by the National Labor Relations Act (“Act”).  The Board also held that the employer’s internet and blogging policy violated the Act.

In 2011, at least two employees discovered that they owed more in state income taxes than they expected.  Employees discussed the situation at work and complained to their employer, Triple Play.  Prior to a staff meeting to discuss the employees’ issues, a former employee posted the following “status update” to her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them.  They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!

Several Facebook friends posted comments in response to the status update, including two of Triple Play’s employees.  One employee commented, “I owe too.  Such an asshole.”  A second employee “Liked” the former employee’s status update, but posted no comment. 

When Triple Play discovered that two of its employees had participated in the Facebook discussion, it fired them.  The employees challenged their termination, and the NLRB ruled in their favor, finding that the employees were engaging in activities protected by the Act.  According to the NLRB, the employees’ comments and "like" in response to the Facebook post constituted a dialogue among employees about working conditions that was protected by the Act. The NLRB determined that the evidence did not establish that the discussion was directed to the general public. Although the record did not establish the former employee’s privacy settings on Facebook, the NLRB noted that the comments were posted on an individual’s personal page rather than a company page providing information on its products or services. The NLRB concluded that the employees’ comments were not "so disloyal as to lose the Act’s protection" because they did not disparage their employers products or services, or undermine its reputation. The Board also held that the comments were not defamatory, but simply a statement of a negative personal opinion of Respondent’s owner.

The NLRB also found that the employers’ Internet/Blogging policy in the employee handbook violated the Act because it was overbroad and unlawfully chilled employees in the exercise of their section 7 rights. The policy warned that "engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment."

Employers need to tread carefully in disciplining employees for their social media activities, as we have reported before.  They should also review and update their personnel policies to make sure that they are not inadvertently “chilling” their employees protected rights.

Delaware Adopts Law Allowing Social Media Accounts to be Inherited

From the ABA Journal:  Delaware is first state to adopt model law that says social media accounts can be inherited.

When individuals die, their social media accounts often expire along with them.  Even if their loved ones have the passwords, terms of use for Facebook and other providers routinely restrict account-sharing.  Delaware became the first state to address these legal issues by adopting The Uniform Fiduciary Access to Digital Assets Act, which recognizes social media accounts as property and provides for executors and heirs to get passwords. 

 

Individuals can also restrict access to their social media accounts, providing in their wills that heirs cannot open or change the accounts, the newspaper reports.

Upcoming Social Media Webinars for Government Officials/Employees

Attention government officials and employees - you might be interested in the following upcoming social media webinars:

Tuesday, July 8th, 2:00 p.m. EDT - 5 Steps to Creating Awesome Social Media Content for Government (even if you have no time or team), presented by Kristy Dalton (aka GovGirl).  

This webinar promises to be especially helpful for those public sector one person social media teams!  Registration link: 5 Steps to Creating Awesome Social Media Content for Government (even if you have no time or team)

Monday, July 21st, 2:00 p.m. EDT -  Search Engine Optimization (SEO) for Government and Public Sector, presented by Luke Stowe.

This webinar will present the new changes from Google's Panda 4.0 release in May as well as discuss the increasing importance of government agency's social media presence which impacts its constituent's search results.  The webinar will also cover available SEO tools and resources. Registration link: Search Engine Optimization (SEO) for Government and Public Sector

Professors Sue University in Blog Case

Two professors at Chicago State University recently filed a lawsuit against the University, claiming that officials illegally targeted the CSU Faculty Voice blog.  The two professors state in their federal lawsuit that they are the founders of the blog, where they and other contributors post about University policies and issues.  The professors acknowledge that their postings are often critical of the University, and claim that the University has "engaged in an ongoing campaign to silence" their right to free speech.  They also claim that the University's actions against the bloggers amount to "cyberbullying" against the University's policy that protects students.  The professors claim that the University sent a cease and desist letter demanding that the bloggers remove copyrighted material, and demanded that the blog remove the University's name and images.  

ACLU Sues City for Shutting Down Mayor Parody Twitter Account

In March of this year, a Twitter account was established in the name of @peoriamayor.  Peoria Mayor Jim Ardis's photograph was used as the account "avatar."  The account's biography read "I am honored to serve the citizens of our great city."  

The problem?  Neither Mayor Ardis nor any other City official or employee had anything to do with the @peoriamayor account.  Instead, the Twitter account was established by Jon Daniel, a 29 year old resident of Peoria, who posted a series of tweets about the Mayor using drugs and associating with prostitutes.  When the City learned of the Twitter account, it contacted Twitter and the account was shut down shortly thereafter, according to news reports.  

Just last week, Mr. Daniel (with some help from the ACLU) filed a civil rights lawsuit against the City of Peoria, Mayor Ardis, and a number of other City officials claiming that the City and officials conspired to violate Mr. Daniel's constitutional rights.  The complaint alleges that the City violated his First Amendment rights, as well as his Fourth Amendment rights when police searched his home and seized his computer and other property as part of its investigation of potential criminal conduct in impersonating a public official (the States Attorney declined to prosecute Mr. Daniel). Mr. Daniel asks that the court enjoin the city from engaging in future conduct that suppresses his freedom of speech rights and requests an award of unspecified compensatory and punitive damages.

Patient Sues Hospital After Her Medical Records are Posted on Facebook

A former patient sued the University of Cincinnati Medical Center, claiming that hospital workers posted her medical records on a Facebook page after she was diagnosed with a sexually transmitted disease.  She alleges that two hospital employees were persuaded by her ex-boyfriend to post her medical records on the Facebook group page called "Team No Hoes."  The medical records included the plaintiff's syphilis diagnosis, and were followed by comments that referred to the woman as a "hoe" and a "slut."  Plaintiff seeks damages from the hospital, as well as improved hospital procedures for protecting confidential patient information.

Hat tip to the ABA Journal for reporting on this case, filed Tuesday.

$50 Citation for Facebook Post Rescinded

On May 20th, a Will County Forest Preserve District officer issued a $50 citation to a woman who had posted the following on Facebook:

I was feeling bad that I haven’t bought a pass and been bringing Ginger there but I’m pretty glad I haven’t. So not going to worry about it until later. I hope all the doggies get better soon.

The comment was posted in response to concerns some dog owners had posted about kennel cough among some dogs at a dog park in Will County.  A county employee noticed the comment and forwarded it to an officer, who interpreted the comment to mean the woman was using the dog park without a permit and issued her the citation.

After receiving the citation, the woman posted on the dog park Facebook page that she had not been to the dog park since 2013.  Shortly thereafter, the county rescinded her citation and stated that the county does not monitor social media in search of potential law breakers nor is it county policy to issue tickets for social media posts.  

Another Attorney in Trouble on Facebook

Social media is getting a lot of people in trouble, and lately the "troublemakers" seem to be attorneys.  An Indiana attorney recently found himself charged with felony intimidation (which could result in jail time) after he posted the following message on his client's ex-husband's Facebook page:

You pissed off the wrong attorney. You want to beat up women and then play games with the legal system … well then you will get exactly what you deserve. After I get [my client] out of jail I’m going to gather all the relevant evidence and them I’m going to anal rape you so hard your teeth come loose. I tried working with you with respect. Now I’m going to treat you like the pond scum you are. Watch your ass you little [expletive deleted]. I’ve got you in my sights now.

The attorney had represented his client in both the divorce and the misdemeanor domestic battery case brought against her by her ex-husband. When questioned about his social media post, he defended his conduct, saying that he was not threatening the ex-husband, just trying to convey how zealously he was going to defend his client.

ASA May Be In Trouble for Facebook Posts

Another story about employees/lawyers behaving badly on social media comes this story about a Florida Assistant States Attorney.  ASA Kenneth Lewis is under fire for several Facebook comments, including the following posts:

On Mother’s Day, he posted: 

Happy Mother’s Day to all the crack hoes out there. It's never too late to tie your tubes, clean up your life and make difference to someone out there that deserves a better mother.

He also posted a photo of Justice Sonia Sotomayor with the following caption:

Reason enough why no country should ever engage in the practice of Affirmative Action again. This could be the result. Where would she be if she didn't hit the quota lottery? Here's a hint: 'Would you like to supersize that sir?' 

He also commented on a news article about an arrest for home invasion as follows:

They should have shot him in the head, anyone that invades another home in a violent manner should be executed on the spot." Yet another post complains that Florida is subject to a "constant flooding of the lowest common denominator from third world nations.

According to an ABA Journal article, immediately after his posts became public, he seemed unapologetic about his Facebook musings, stating “It's an inspirational message to do the right thing."  At a later press conference, however, he seemed to back off from his earlier statement, saying his posts were intended to get people talking about the issues and he was sorry if people were offended by his "poor choice" of words.  

The States Attorneys (his boss) issued a statement saying that while he didn't agree with his ASA's postings, his opinions were protected by the First Amendment.  

MAUIWatch Facebook Case Settles

We have reported previously on the lawsuit filed against the County of Maui by a County employee who maintains a MAUIWatch Facebook page where he posts news and other stories about Maui.  Mamuad v. County of Hawaii, Dist. (Haw. Mar. 3, 2014).  According to his lawsuit, the County told him to shut it down and when he didn't, he was subject to disciplinary action.  He was also the subject of a harassment complaint by a co-worker who claimed his Facebook activities amounted to cyber-bullying.  

This month, the parties agreed to settle the case before the court could hear initial arguments on the motion for a preliminary injunction.  The settlement requires the County to rewrite its anti-harassment policy to clarify that employees have First Amendment rights outside the workplace.  The County was required to expunge any record of disciplinary action against Mamuad, and pay his attorneys fees and damages in the amount of $25,000.  

Arbitrator Upholds Teacher's Termination for Facebook Threats

A college fired one of its history instructors after discovering that the teacher had posted threatening messages to co-workers on his Facebook page.  He challenged his termination, and a hearing was held before an arbitrator in January.  The upheld his termination, rejecting his PTSD defense.

You can read more about the termination here.

Lawyers Should Not "Friend" Jurors But Can View Public Information

The American Bar Association recently issued Formal Opinion 466 concerning potential ethical problems with lawyers communicating with potential jurors through social media.  The opinion provides the following advice to lawyers:

• A "passive review" of a juror's public social media site is not improper ex parte conduct, similar to driving down a juror's street to gather information about the juror.

• Asking a juror for access to his or her social media account (i.e., "friending" a juror) is improper, much like stopping the car to ask the juror's permission to look inside his or her home.

• The fact that a juror may become aware that the lawyer reviewed his public social media account does not constitute a communication from the lawyer. 

The opinion also recommends that judges and lawyers discuss the court's expectations concerning lawyer review of juror social media information, and suggests that courts issue an order or have standing rules in place to provide guidance to lawyers.

The opinion also recommends that jurors be instructed not to use social media to communicate about their jury service or a pending case.  If a lawyer becomes aware of juror misconduct, the lawyer may be obligated to take some remedial action, including reporting the juror's conduct to the court, depending on the nature of the communication.  For example, the opinion noted that a juror complaining about the qualify of the food at lunch is not likely to justify criminal contempt, but substantive communications about the trial could go to the integrity of the trial.

Banana Lady Loses Copyright Lawsuit

I wish this case had been decided before April 1st, because it sounds like a bad April Fools joke. 

The self-described "Banana Lady" (a singer and performer) was hired to perform a singing telegram at a credit union trade association event. After the event, she filed suit against the credit union association claiming they violated her intellectual property rights when employees and other audience members posted photos and videos of her performance on their personal Facebook pages. She claims that she made it clear to the arrangers of the event that audience members were not to take photos or videos and that they failed to inform the audience of these limitations until her performance had ended.

Judge Posner wasted no time in finding that the plaintiff's claims had no merit, and rejecting her argument that her version of the "banana dance" was copyright protected.  The rest of the court's opinion includes a summary of the plaintiff's many other lawsuits relating to her "Banana Lady" persona, including at least 8 federal lawsuits and 9 state lawsuits with similar allegations as the one before the 7th Circuit. The court concludes by suggesting that the district court consider enjoining the plaintiff from filing further lawsuits until she pays her litigation debts, which are well into six figures.

I wanted to post a photo of the Banana Lady [here] but restrained myself.  You can see a full-color photograph on page 2 of the 7th Circuit's opinion at Conrad v. AM Community Credit Union (7th Cir. April 14, 2014)

Social Media & Ethics CLE Webcast

On May 8, 2014, ALI-CLE will present a webinar titled "Ethical Considerations in the Use of Social Media: Avoiding the Common Mistakes" on May 8, 2014, from 12:30-1:30 p.m. (Eastern); 11:30-12:30 (Central), with blog author Julie Tappendorf as the presenter.  

ALI-CLE's summary of the webinar is below.  You can also learn more on ALI-CLE's website.

Attorneys are just as likely to use social media in their everyday lives as non-attorneys. They post pictures on Instragram, “check in” on Facebook, and tweet about politics, music, and what they ate for dinner just like everyone else. But where a hasty post or comment might lead only to embarrassment for some, a seemingly innocent disclosure by an attorney could lead to serious ethical repercussions!

This CLE ethics program on lawyers’ use of social media will help you avoid disclosures in social media that could create ethical problems for you. Designed by Julie Tappendorf, a leading authority on ethical issues, the 60-minute program offers an overview of the most common ways social media use could lead to ethical violations of the ABA Model Rules of Professional Conduct.

This program addresses a series of concrete situations that could generate ethical issues for attorneys, including:

• giving legal advice outside your jurisdiction

• forming attorney-client relationships inadvertently though online activities

• using web sites, blogs, emails and chat rooms

• using social media in litigation

• revealing personal information

• employees’ use of social media

Communicating in an Electronic Age

Blog author Julie Tappendorf recently published an article titled "Communicating in an Electronic Age" in the American Planning Association (APA) April edition of Planning magazine.  The article provides helpful tips and guidelines for plan commissioners and other elected and appointed officials in using email and social media communications in compliance with their obligations to comply with ethics, open meetings and records laws.  The article emphasizes the importance of establishing and ensuring compliance with a local e-communications policy.

You can read the article here.

Know Your Workplace Social Media Policy

We've reported on a number of "employees behaving badly" on social media, resulting in the employee being disciplined and even terminated.  You would think that people would learn from others' mistakes - yet, the examples keep coming in.  Here are a couple of new ones for you to ponder on a Monday morning:

• A 22-year old paramedic in Florida tweeted at work:  "Although everyone's asleep while I work around the clock, I absolutely love my job." 

• A Georgia high school teacher posted pictures on Facebook of her holding a beer in one hand and a glass of wine in another while on vacation in Ireland.

• A South Carolina firefighter posted a cartoon video "spoof" of an exchange between a doctor and paramedic at a hospital on Facebook that showed the doctor telling the paramedic to transport a patient ASAP to another hospital because he had a cold and a runny nose.

• A public relations director tweeted "Going to Africa. Hope I don't get AIDS. Just kidding. I'm white!" shortly before a flight to South Africa.

What do all of these examples have in common?  All of these employees were terminated from their jobs for their social media activities.   Many of you may be thinking - "what's so bad about some of these posts?" Some of you are probably saying "doesn't sound so different from what I posted this morning/over the weekend/during my work day."  The key factor is that each of these employees violated their workplace social media policies.  

Employees need to read and understand the social media and electronic communication policies.  The policies may not be restricted to regulating social media conduct at the office, at least for some employees like public safety officers, teachers, and others in certain employment fields.  So long as the policy does not restrict "protected speech," whether protected by the First Amendment or labor laws, an employer can regulate it.

Lawyers, Ethics, and the Cloud

The ABA Journal recently reported on the potential ethical issues that can arise with lawyers computing in "the cloud."   Many law firms have begun storing their data in the cloud, which as the ABA article notes, is just “a fancy way of saying stuff’s not on your computer.”  The 18 states that have weighed in on the propriety of cloud storage of data have found it acceptable, but that does not excuse a lawyer or law firm from investigating the source to determine the extent of the security measures for sensitive and attorney-client confidential data.  To read more, you can read this article:  Ethics rulings tell lawyers to seek security when in the cloud. 

Public Employees, Facebook & the First Amendment

Government entities have been establishing and maintaining a pretty active social media presence, with many cities posting about community events on Facebook, tweeting emergency information, and uploading meeting videos on YouTube. And, government employees are just as active on social media as employees in the private sector. So, what is the difference? That would be the First Amendment, which can affect how government can regulate its own social  media presence and how it deals with its employees' social media activities.

Surprisingly, there have been very few cases on the First Amendment and social media use.  In 2012, the Honolulu Police Department was sued for removing negative comments from its Facebook page - that lawsuit is still pending.  Recently, a Court of Appeals ruled in favor of government employees who had been terminated by their boss for "liking" his opponent's campaign page.  And now, we have a new lawsuit filed against Maui County by a county employee who claims the county is violating his First Amendment rights by pressuring him to shut down is Facebook page, where he reports on county issues.  Mamuad v. County of Maui (Dist. Haw. Mar. 3, 2014). You can read the complaint here.

Mamuad is a part-time administrative assistant and volunteer liquor commissioner for Maui County.  In 2013, he established a Facebook page called "TAGUMAWatch." which he later renamed to "MAIUWatch, where he reports on news items of interest in Maui County.  Many of his posts (and public comments) were about the activities of Maui County police officer Taguma, an alleged prolific ticket-writer. Athough Mamuad did not advertise his involvement with the Facebook page, the county learned of the page (remember what I say - someone will always rat you out, and it's usually one of your "friend" co-workers).  The county attorney met with Mamuad and told him to shut down the page.  He refused to do so, and became the subject of a harassment complaint filed against him claiming that his Facebook activities amounted to cyber-bullying.

In his lawsuit against the county, h claims that the county's workplace policies against cyber-bullying violate his constitutional right to freedom of speech. He also claims that the county has "chilled" his First Amendment speech by threatening to terminate him if he does not shut down the Facebook page or moderate his speech.  

In deciding whether the county has violated Mamuad's First Amendment rights, the court is going to apply the Ninth Circuit Court of Appeals test for "public employee speech." That test will require the county to consider the following:

• Were Mamuad's postings on a "matter of public concern"?  
• Did he speak as a private citizen or public employee?  
• Was his speech a motivating factor in any adverse employment action? 
• Did the government have an adequate justification for treating Mamuad differently from members of the general public? 
• Would the government have taken the adverse employment action absent the protected speech?

Many government employers are understandably unsure about their legal limitations in regulating employee activities on social networking sites when those activities negatively impact the government or other employees. This case may provide some guidance to government employers, assuming it doesn't settle before a court issues a ruling.

Lawyer Suspended for Posting Video on YouTube

On March 14, 2014, the Illinois Supreme Court suspended a lawyer for five months after he posted a video he obtained through discovery of an undercover drug buy.  The lawyer thought the video exonerated his client by showing police planted drugs on his client, but the video actually showed his client delivering drugs to a buyer. He violated the attorney ethical rules by not obtaining informed consent before disclosing information about a client, which harmed his client in the criminal proceedings.

Attorneys should be aware of how their social media activities can affect their ethical obligations.

Law Firm's Website is "Commercial Speech"

A dental company sued a law firm claiming that certain statements on the law firm's website constituted false advertising, trademark infringement, cyberpiracy, and defamation, among other allegations.  The law firm filed a motion to dismiss, arguing that its statements were protected by the state anti-SLAPP law.  The 5th Circuit Court of Appeals disagreed, however, and denied the law firm's motion, finding that the anti-SLAPP law did not apply because the statements on the law firm's website were "commercial speech".

You can read more about the case on the ABA Journal's website.

San Francisco Sues MeetMe for Violating Unfair Competition Law

The City of San Francisco recently filed a lawsuit against "MeetMe," a social networking site, that claims that the site unlawfully publishes minors' profiles, photos and location data that can enable sexual predators and stalkers to target children.

Specifically, the complaint claims that MeetMe, Inc. is violating California's Unfair Competition Law by relying on legally invalid consent from minors between the ages of 13 and 17 to collect and improperly distribute their real-time geolocation and personal user information.  According to the complaint, about 25 percent of MeetMe.com's user base is under the age of 18.  The lawsuit also claims that MeetMe fails to adequately disclose to users how their personal data is distributed.

The lawsuit seeks a court order to enjoin MeetMe from continuing to engage in activities in California that violate state law; civil penalties of up to $2,500 for each violation found to have occurred in the state; and the City's costs in bringing the case.

The case is: People of the State of California ex rel. Dennis Herrera v. MeetMe, Inc. et al. (San Francisco Superior Court Case No. 537126, filed Feb. 3, 2014).  

Upcoming Full-Day Social Media Legal Program

On June 6, 2014, IICLE will present a full-day program on the legal and ethical issues that arise in the use of social media.  Strategically Social author Julie Tappendorf is on the faculty, and will be presenting a session called "Ethics Jeopardy."  The program will be informational and entertaining.  Just like Facebook, right?

You can find out more and register on IICLE's website.  A description and outline of the program is below: 

IICLE^®'s 2nd Annual Social Media Law Institute is a forum for litigators, in-house counsel, labor, employment and business law attorneys, government or private practice attorneys and other legal professionals who want more information about the legal implications of social media across a broad variety of topics. Knowledgeable professionals on social media in a variety of venues join the faculty for this program, creating materials and presentations to help you be better prepared for handing these issues in your practice

2nd Annual

Social Media Law Institute

Covering Three Important Practice Areas for Social Media Use

1:  Use of Social Media in the Workplace  Use of Social Media by HR & by Employees  Managing the Use of Social Media by HR & by Employees  2:  Use of Social Media in the Courtroom  Social Media in Litigation  3:  Use of Social Media in the Law Firm A Brief Guide to Attorney Social Media Ethics Ethics Jeopardy – Social Media Edition

Yik Yak and the Social Media Bullying Trend

Education Law Insights posted a great article yesterday titled: How Lessons Learned From “Yik Yak” Can Help You Address The Next Novel Social Media Bullying Trend.  You may have read about this social networking "app" that allows users to post comments that can be seen by others within a 5 to 10 mile range.  Because the users are anonymous, the app has been used recently to bully others without repercussion. The problem became so widespread that some schools have gone so far as to disable the app entirely.

 

Visit Jackie Wernz's Educational Law Insights blog to read more about this story. 

Introducing Social Media Evidence at Trial

For my lawyer readers out there, this Delaware case will be an interesting one. Parker v. State (Delaware Supreme Court, Feb. 5, 2014)

The question in the case was how social media evidence could be introduced at trial.  In this case, the defendant had been arrested for assault and "terroristic threatening" for getting into a fight with another woman over a disagreement involving Facebook messages.  The prosecution wanted to introduce Facebook posts allegedly authored by the defendant that would discredit the defendant's self-defense argument, including a post that included the hashtag #caughtthatbitch.  

The defense argued that the Facebook posts should not be admitted as evidence without the defendant's admission that she authored the posts.  The trial court allowed the testimony without defendant's admission, and the defendant was ultimately convicted of assault.  She appealed, and the case made its way to the state supreme court.

There are two basic schools of thought on admission of social media evidence.  One approach, adopted by Maryland, requires an admission from the author of the post to authenticate the evidence.  The other approach, adopted by Texas,  Arizona, and New York, allows circumstantial evidence to authenticate the social media content, including witness testimony, and leaves it up to the jury to decide whether the evidence is authentic.  

The Delaware Supreme Court adopted the latter approach, and upheld the conviction based on witness testimony authenticating the Facebook posts. In this case, the posts were created on the day after the incident, and specifically referenced the fight between the two women.  Witness testimony (a "friend" of the defendant's) testified that she saw the post, and then published it on her own Facebook page.  

Lesson of the day?  Be careful what you post on social media as it can be used against you in a court of law.

Hap tip to reader Amy McShane for sharing this case!

The $80,000 Facebook Post

A $80,000 Facebook post?  Yes, that's what it cost a former employee who lost his age discrimination settlement payment because his daughter posted about the settlement on her Facebook page.

The former headmaster of a Miami private school sued his school in 2010, and won a settlement of $80,000. The settlement agreement included a confidentiality clause that prohibited him or the school from talking about the case.  His daughter, however, bragged about the settlement on her Facebook page, posting the following:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT. 

1,200 of her Facebook friends saw the post, which also found its way to the school, who appealed the verdict. The judge tossed out the settlement, finding that the former headmaster violated the agreement because his daughter revealed the settlement terms.

He is likely to appeal the judge's decision. 

The lesson of the day?  You can't always trust your social media "friends" or your privacy settings to protect your social media activities so act as if anyone and everyone (your mom, teacher, grandmother, boss, future boss) will see what you post.

Free Webinar on Local Governments & Social Media

Want to learn more about local governments and social media?  Then join me on March 20, 2014, from 1:00 p.m. to 2:00 p.m. (Central) for the following webinar:  "Tackling the Legal, Policy, and Archival Issues in SocialGov."  

Speakers include blog author Julie Tappendorf of Ancel Glink, Anil Chawla, CEO at ArchiveSocial, and Luke Stowe, Digital Services Coordinator at the City of Evanston. They will discuss best practices for government agencies participating in social media.

You can register by clicking here.  It's free, so why would you miss it?

Upcoming Webinar: Facebook for Government

On Thursday, February 13, 2014, from 1:00 p.m. to 2:00 p.m. (CST), Adam Conner, Public Policy Manager at Facebook, and Kristy Dalton, CEO of Government Social Media, will present a webinar called "Facebook for Government."  The webinar will be moderated by Luke Stowe, Digital Services Coordinator with City of Evanston, Illinois.  Adam will answer your questions on how social media coordinators can best leverage Facebook for citizen engagement and Kristy will offer some best practices currently in use by government agencies. 

This special webinar is sponsored by International City/County Management Association (ICMA), Public Technology Institute (PTI), Association of Government Contact Professionals (AGCCP), National Association of Government Web Professionals (NAGW), and Government Social Media, LLC.

You can register for this webinar here.

Judges Cautioned Not to "Friend" Parties in Pending Cases

We have previously reported on the potential ethical minefield for judges on social media.  A Florida appellate court recently addressed that issue in Chace v. Loisel, decided on January 24, 2014.  In that case, a party filed a motion to disqualify the judge presiding over her divorce case after the judge sent her a "friend" request via Facebook. The judge denied the motion, and she appealed claiming that the Judge retaliated against her by awarding a "disproportionately excessive alimony award" to her spouse.  

The appellate court reversed the trial court, finding that a judge's ex parte communication with a party is a legally sufficient claim for disqualification. In this case, the judge's "friend" request placed the party in a difficult place of either engaging in improper ex parte communications or risk offending the Judge by not accepting the "friend" request.  

In conclusion, the appellate court cautioned judges to avoid situations such as this one that might undermine the public's confidence in a judge's neutrality.

Jury Decides First "Twibel" Case

According to a variety of news sources, the jury in the first known "twibel" case (i.e., a defamation case involving Twitter) found in favor of the defense - in this case, Courtney Love.  Love's former attorney had filed the case after Love tweeted the following:  "I was (expletive) devastated when Rhonda J Holmes Esq of san diego was bought off."  Holmes had previously represented Love in a fraud case against the estate of her late husband, Nirvana front man Kurt Cobain.  She claimed that the tweet and other statements the singer made against her after she was fired from that case caused her substantial damage, to the tune of $8 million.  

The jury disagreed.  Although the jury found that Love's tweet was a false statement, because Love didn't know it wasn't true, she wasn't liable for damages under traditional defamation law.

Bloggers Have Same First Amendment Rights as Mainstream Media

In Obsidian Finance Group, LLC v. Cox, the Ninth Circuit Court of Appeals held that bloggers enjoy the same First Amendment rights that apply to more traditional journalists.  

Blogger Crystal Cox posted a variety of accusations on her blogs alleging that Obsidian Finance Group and a bankruptcy trustee were guilty of fraud, corruption, money-laundering, and other illegal activities in connection with a pending bankruptcy. According to the opinion, Cox had a history of making similar allegations and seeking payoffs in exchange for retraction.  

Obsidian filed a defamation suit against Cox, and the federal district court held that all but one of Cox's blog posts were constitutionally protected opinions. The court allowed the defamation case to continue based on one of Cox's posts that alleged specific factual allegations. Cox argued that her blog post involved a matter of public concern, and that plaintiffs had the burden of proving her negligence in order to recover for defamation.  She alternatively argued that the plaintiffs were public figures so they were required to prove Cox made the statements with "actual malice."  The district court rejected her arguments, first finding that the negligence standard did not apply to her because she was not a journalist.  The court also held that the plaintiffs were not public figures. At the end of the trial, a jury ruled in favor of the plaintiffs, awarding them $2.5 million collectively.

On appeal, the court of appeals first reviewed the Supreme Court's standards for defamation cases. For defamation involving public officials, the plaintiff has to show "actual malice" of the defendant.  NY Times v. Sullivan.  For private defamation, the plaintiff must show negligence. Gertz v. Robert Welch.  The court of appeals rejected the plaintiffs' argument that the Gertz negligence standard only applies to institutional press, finding that although those cases had not addressed internet publication, the same standards should apply. The court of appeals cited to the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission - "With the advent of the Internet and the decline of print and broadcast media...the line between the media and others who wish to comment on political and social issues becomes far more blurred."    

Because the district court had not applied the correct standard (negligence), the court remanded the case back to the district court.