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.