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.