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Thursday, August 6, 2015

Social Media Records Retention Guidance for Local Governments

Is a social media post a public record that must be retained under state of Illinois record retention laws (i.e., Local Records Act or State Records Act)?   The Illinois Secretary of State has answered that question with a "it depends" in a 2015 publication called "Government Records Law and Social Media: Guidance for Illinois Government Agencies."  

The SOS first acknowledges that content on social media sites is more difficult for a government agency to control because these sites are (1) controlled by non-contracted third party entities and (2) are not subject to regulations that cover government agencies. As a result, the SOS cautions, these sites offer no guarantee that a government can control or capture everything that has been posted. 

For the most part, the guidance offered by the SOS is consistent with the practice of most government bodies, with the exception of #5 regarding FOIA requests submitted via social media sites.

Here's a summary of the 5 guidelines in the SOS' publication:

1.  Are social media posts public records?

Social media posts are public records if:

(a) the posts are made on an official public agency account or on a private account that is being used to distribute information for that agency to the public. Content posted on private accounts of public employees not used as part of their jobs is not a public record.

(b) the content posted is unique. So, if the same content is transmitted by a press release, newsletter, on the government's website, or some other method, then the government can retain the "traditional" and not the social media version.

2.  How long do I have to retain a social media post that qualifies as a public record?

Social media content that qualifies as a public record will have different retention requirements, depending on the nature of the post because records retention is based on the content of the record, not its format. For example, a social media post that includes responses should be treated like correspondence. The dissemination of information, on the other hand, is treated like press releases, meeting notices, and other informational notifications.

3.  Do comments from the public have to be retained?

Not necessarily, unless the comments trigger some action by the agency. So, if a resident posts a complaint about the government, and there is no response to that complaint, then it is not a public record. On the other hand, if a resident posts a complaint, and the government responds (either directly to the post or by taking some action to address the complaint), then the post is a public record.

The SOS also advises that governments do not have to maintain inappropriate comments or inflammatory language and can moderate their social media pages. However, governments should be careful in moderating posts so as not to implicate the First Amendment. Having in place a social media comment policy that informs members of the public of the type of posts and comments that will not be allowed is important.

4.  How do I capture content from our social media accounts?

Most of the social media sites do not allow you to download activity logs, so governments need to consider alternative methods of retaining that content that qualifies as a public record. The SOS suggests capturing screenshots, or composing messages in local software, or using third party software that captures social media content automatically. 

The SOS discourages governments from using private messaging services through these social media sites because they are difficult to retain.

5.  Do we have to respond to FOIA requests submitted through social media.

The SOS says yes, taking a broad interpretation of section 3 of FOIA that states that "[w]ritten requests may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body." 

This advice seems problematic for a number of reasons. First, if someone posts a comment on a government's Facebook page requesting a particular document, that post may or may not show up in the government's timeline due to Facebook's "formula" for publishing posts in the timeline. Second, it is not always the case that the FOIA officer is also the person administering and monitoring the government's social media sites. Third, the SOS is not the state agency charged with enforcing the Freedom of Information Act - that is the job of the Public Access Counselor of the Attorney General's office and the courts.  As we have recommended in the past, governments should adopt a Freedom of Information Act policy that clearly states how FOIA requests should be filed with the government.   

Monday, July 20, 2015

County Prosecutor Who Blogs About Political Matters Is Not Acting Under Color of State Law

John Patrick Frey, a prosecutor in Los Angeles County authored a blog called Patterico's Pontifications, where he posted about criminal law and politics. His blog included a disclaimer that his views were his own and were not made in any official manner. After Frey posted a number of stories about Nadia Naffe (a political activist) calling her a liar, illiterate, and dishonest, among other things, Naffe filed a lawsuit against Frey and the County, alleging that his blog posts violated her civil rights.

The district court dismissed the lawsuit, finding that Frey did not act “under color of state law.” Naffe appealed to the Ninth Circuit Court of Appeals, which agreed with the district court that Frey was not acting in any official capacity when he blogged about Naffe. First, the Court noted that Frey’s job as a prosecutor did not include commenting on politics, so he was not exercising his official duties when he blogged about Naffe. Second, his blog included a disclaimer that he was speaking personally, and not as a district attorney.  As a result, Naffe’s civil rights claims could not proceed against Frey, since he was not acting in his official capacity when he blogged about Naffe.  Naffe v.Frey, No.  13-55666 (9th Cir. June 15,2015). 

Wednesday, July 15, 2015

Attorney Not Entitled To Identity of Anonymous Poster on Avvo

In a recent appellate court decision in Washington state, a court denied a lawyer's request that Avvo (an online attorney rating site) disclose the identity of an anonymous poster who wrote a negative review of the lawyer. Thompson v. Jane Doe (Ct. App. Wash. 2015)

The review stated as follows:
I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.
The attorney claimed that the post was designed to impugn her personal and professional reputation, and that she needed the poster's identity in order to proceed with a defamation action. refused to release the identity of the poster, so she filed a lawsuit to compel the release. 

The court reviewed a variety of cases where courts had considered similar requests to divulge the identity of anonymous posters. The court noted that there courts had applied differing standards in these cases. For example, in Virginia, a defamation plaintiff seeking an anonymous speaker's identity must establish a good faith basis to contend that the speaker committed defamation. Other courts applied the "motion to dismiss" standard - in other words, could the plaintiff's defamation claim survive a motion to dismiss.

The Washington court rejected both standards, however, in favor of a standard that requires the plaintiff to provide supporting evidence beyond the pleading standards before an anonymous speaker's identity is released. Applying this more stringent standard, the court held that Thompson was not entitled to disclosure of the poster's identity.

Post Authored by Julie Tappendorf

Monday, June 22, 2015

Zoo Worker Terminated For Social Media Posts About the Public

Last week Brookfield Zoo, operated by the Chicago Zoological Society, discharged a worker for posting the comment “rude a** white people” in an Instagram selfie, which she then shared to Facebook. She made matters worse for herself because the photo showed her wearing her Brookfield Zoo uniform and she tagged the location as the Brookfield Zoo. The Zoo has a social media policy which prohibits its employees from discrimination and harassment, including on social media.

So, in a time where the trend is clearly to protect the speech of employees, including social media comments, what makes this employer think that this discharge will stick? Consider the following:
  1. The former employee was not criticizing either fellow workers or members of management.  The NLRB has lately gone out of its way to find even offensive language by employees to be protected if it is about the workplace and/or management related to their duties in the workplace.
  2. The former employee did not make the comments in the context of protected concerted activity. This factual pattern differs markedly from the Cooper Tire case on which we reported last week where picketers yelled racially charged insults at temporary replacement workers. In the Cooper Tire case, the NLRB found the offensive language to be protected as part of the concerted action of picketing and that the language, while clearly offensive, was not threatening. The Brookfield Zoo employee just made a racially offensive remark.
  3. The former Zoo employee not only identified herself as an employee of the Zoo by wearing her uniform in the picture accompanying the remark, but tagged the location of her remark as the Brookfield Zoo. Had she made her remark without reference to her employment, she would probably still be employed there. As it was, her selfie in Zoo uniform with the comment clearly associated the remark to her employment and the location tag made it appear that she made the remark while at work. 
  4. A strong Zoo policy prohibiting harassment and discrimination, including on social media, exists. The employer could find both that the ex-employee knew of the prohibited behavior and violated the policy. 
While employers may rightfully feel a bit gun-shy about taking adverse action against employees who make inappropriate or downright offensive statements in or about their workplace, offensive or discriminatory comments about customers are rarely protected by law. A clear policy prohibiting such behavior by employees as it relates to their employment, will generally allow the employer to take appropriate action.

Original Post Authored by Margaret Kostopulos, Ancel Glink

Friday, June 19, 2015

Anonymous Poster's Identity Must be Released in Defamation Case

Last week, the Illinois Supreme Court decided a case involving anonymous internet posters. The case involved certain online comments to a newspaper article about Bill Hadley, a candidate for county board office. Hadley v. Subscriber Doe a/k/a Fuboy, 2015 IL 118000. Specifically, an anonymous poster called "Fuboy" had posted the following comment (among others) to the online article:
Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire [a local grade school] from his front door. 
Hadley filed a defamation lawsuit against the newspaper. As part of the litigation, the newspaper provided Hadley with the IP address acquired from Comcast from which  "Fuboy's" comments originated. Hadley then sought a court order to require Comcast to release the identity of the subscriber of the IP address. Counsel for the subscriber filed a motion to quash the subpoena, and while the motion was pending, Hadley filed an amended complaint naming "Subscriber Doe a/k/a/ Fuboy" as a defendant to the defamation action. Both the circuit court and appellate court ordered Comcast to turn over the subscriber's identity, and the subscriber appealed to the Illinois Supreme Court.

The Illinois Supreme Court affirmed the lower courts' decisions that the subscriber identity should be released to Hadley. Rule 224 provides that a plaintiff is entitled to ascertain the identity of the individual who may be responsible for damages against the plaintiff. The rule has been applied in defamation cases where the plaintiff can show that discovery of the individual's identity is "necessary" and where the plaintiff has presented sufficient allegations of a defamation claim to overcome a motion to dismiss. 

To state a cause of action for defamation, a plaintiff must show facts showing that the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages. Here, the Supreme Court held that Fuboy's statements impute the commission of a crime to Hadley by referring to the Sandusky sexual abuse scandal, which at the time the comment was posted, had dominated the news for weeks. That statement, the Court noted, could reasonably be interpreted to mean that "Hadley was a pedophile or had engaged in sexual acts with children." 

The Court rejected Fuboy's argument that the comment could be susceptible to an innocent interpretation. The Court also rejected Fuboy's argument that the statement was not a factual assertion, but simply opinion. First, the comment had a precise and readily understood meaning, could be readily verified, and conveyed some personal familiarity from Fuboy that suggested it had factual content. 

As a result, the Court agreed that Comcast must turn over its subscriber's identity to Hadley, in furtherance of his defamation case.

Lesson?  Nothing is ever truly anonymous on the Internet.

Post Authored by Julie Tappendorf

Monday, June 1, 2015

NLRB Again Finds Facebook Cursing About Supervisor is Ok

From The Workplace Report with Ancel Glink: NLRB Again Finds Facebook Cursing About Supervisor is Ok.

It seems to be open season on supervisors. Recently the NLRB has issued one decision after another finding that employees’ vulgar postings about their supervisors is protected speech.  Take the case of Pier Sixty LLC v. Perez and Gonzalez.

Perez was an employee of the catering company, Pier Sixty.  Employees had long complained that supervisors and management were disrespectful towards employees, with this being one of the reasons that employees petitioned for union representation.  Two days before the union election, Perez was working a catering event. His supervisor, Robert McSweeney approached him and other employees during the event with direction to “stop chitchatting and face the guests” and “spread out, spread out”. While the case references testimony that McSweeney spoke in a harsh tone at that event, it is devoid of evidence that he was cursing that night.
Perez, upset by the supervisor’s tone, and undoubtedly fueled by past circumstances and the upcoming election, posted the following statement on his Facebook page during a work break:
Bob is a nasty mother f***** don’t know how to talk to people. F*** his mother and entire f****** family.  What a LOSER!!! Vote yes for the UNION.  
Several employees saw the post, as did members of management, although Perez took the post down two days later. You can probably guess that the company fired Perez for the vulgar post.

It should also be no surprise by now that the NLRB found that Perez’s post was protected concerted activity. While the result may seem disheartening to employers, a close reading  of the decision reveals facts upon which the agency relied in reaching its decision that may not exist in most workplaces.

The NLRB analyzed Perez’s claims based on the totality of the circumstances test which incorporates a number of factors such as when and where the employee made the offensive statements, whether the employee was provoked or whether the statement was impulsive or deliberate, past practice of the employer in disciplining employees for like statements and the employer’s policies and practices. As egregious as the statement was, the employer had a few chinks in its armor as well. 

First of all, the statement was posted  two days before a union election and it contained the sentence “Vote yes for the Union.”  This is not to conclude that every vulgar statement will be protected activity if an employee just includes a statement about their union, but in this case there was, in fact, a union election two days hence.

Additionally, while the company claimed that it fired Perez for violating company policy, it failed to produce or identify the specific policy on which it relied. Finally, and maybe most importantly, evidence in the case revealed that cursing was commonly accepted in the workplace among all levels of employees, including what appears to be liberal use of  the “f” word.  

Employers should take note that before disciplining or discharging an employee for complaining about the workplace or a supervisor using offensive language on social media or away from the workplace, measure the seriousness of the conduct against other accepted language in the workplace as well as against policies. This is especially true if the nature of the complaint is common to other employees as it was with Perez.

Offensive social media posts and other statements by employees, especially when directed at a particular member of management,  require thorough analysis before issuing discipline.  The NLRB ordered Pier Sixty to reinstate Mr. Perez in this case. Often if an employer consults with an experienced labor and employment attorney before taking action, a better result can be achieved.

Post originally authored by Margaret Kostopulos, Ancel Glink

Monday, May 4, 2015

I hate working at day care...

In yet another example of "employees behaving badly" on social media, a recently hired employee was terminated before she even started her job after her new employer learned that she had posted the following on Facebook:
I start my new job today, but I absolutely hate working at day care.
Yep, her employer was a day care center.

Post Authored by Julie Tappendorf

Wednesday, April 22, 2015

Coach Fired for Tweet

A high school softball coach was fired for posting the following "tweet" on her personal Twitter account:

The tweet was apparently a response to earlier statements made by restaurant owners to the press that "If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no."  Although the coach has since deleted the tweet, it lives on in "screen caps" as well as the many replies and forwards of her tweet.

The Indiana coach had been serving a suspension since April 1st, but the school district superintendent confirmed that she was officially terminated earlier this week.  

Tuesday, April 21, 2015

Federal Government Issues Guidelines on Employee Use of Social Media

On April 9, 2015, the U.S. Office of Government Ethics issued a legal advisory titled "The Standards of Conduct as Applied to Personal Social Media Use" that apply to executive branch employees of the federal government.  You can read the legal advisory here.  

The introduction to the legal advisory states that the standards of conduct are not intended to prohibit executive branch employees from establishing and maintaining personal social media accounts but to serve as guidelines for these employees in engaging in personal social media activities.  

Here's a preview of the standards of conduct:

1.  Use of Government Time and Property

When employees are on-duty, they must make an "honest effort to perform official duties."  That means that access and use of personal social media accounts should be limited while on duty.  Further, government property must be used only to perform official duties unless an employee is authorized to use the property for other purposes.  Finally, employees must follow their agency policies on social media use, including any 'limited use" policies.

2.  Reference to Government Title or Position & Appearance of Official Sanction

As a general rule, employees are prohibited from using their official titles, positions, or any authority associated with their public offices for private gain or in any manner that could be interpreted as government endorsement of their activities. However, the standards do not prohibit an employee from identifying his or her official title or position on the site's biographical information area.  The standards set out 7 factors for agency ethics officers to consider in determining whether an employee has violated this standard, including whether an employee states that he or she is "acting on behalf of the government" or "refers to his or her connection to the government as support for the employee's statements."  Employees are not required to post disclaimers disavowing government endorsement, although they are encouraged to clarify that their communications reflect only their personal views and not the views of the federal government or agency.

3.   Recommending and Endorsing Others on Social Media

Employees are permitted to make recommendations or endorsements of others in their personal capacity, such as on LinkedIn.

4.  Seeking Employment Through Social Media

Employees must be cautious in using social media to seek employment to ensure that their conduct complies with other federal regulations, including applicable disqualification requirements and any additional agency regulations.  Posting a resume or summary of professional experience will not violate the standards.

5.  Disclosing Nonpublic Information

Employees are prohibited from disclosing nonpublic information to further their private interests or the private interests of others.

6.  Personal Fundraising

Employees may use personal social media accounts to fundraise for nonprofit charitable organizations in a personal capacity, so long as the employee does not personally solicit funds from a subordinate or a known prohibited source.  Employees may not use their official titles, positions, or authority to further fundraising efforts.

7.  Official Social Media Accounts

Employees who use official government accounts must apply with the agency directives, regulations, and policies and all conduct and activities must be for official purposes.

Monday, April 13, 2015

California Opinion Would Establish Guidelines for Attorney Bloggers

Lawyers blog. That in itself is not a problem, as blogging is neither illegal nor unethical.  However, the content or materials posted on a lawyer's blog could implicate any number of ethical rules that lawyers must follow.  Recently, California has proposed an opinion addressing the ethics rules that restrict or limit attorney advertising.  You can read the proposed opinion here.

In short, proposed opinion 12-0006 would provide guidelines on the type of blog content that would constitute advertising in California and, therefore, be subject to Rule 1-400 of the Rules for Professional Conduct that applies to California attorneys.  

The proposed opinion provides the following guidelines to California attorneys who blog:
  1. Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both. 
  2. A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part. 
  3. A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website. 
Comments were accepted until late March.  A formal opinion will follow the committee's review of the comments.

Thursday, April 9, 2015

Case Claims Facebook "Tag" Program Violates Illinois Privacy Laws

On April 1, 2015, Carlo Licata filed a class action complaint in Cook County, Illinois, against Facebook, Inc. alleging that the company violated the Biometric Information Privacy Act (an Illinois statute) when it launched "Tag Suggestions" that recognizes and identifies friends in photos uploaded by users so the users can "tag" them in the photo.  Licata v. Facebook, Inc. (Cook County)

The Biometric Information Privacy Act (BIPA) was enacted in 2008, and makes it unlawful for a company to "collect, capture, purchase, receive through trade, or otherwise obtain a person's biometric identifiers or information unless the company provides advance notice and receives a written release for the use.  

Licata alleges that the "Tag Suggestions" program uses facial recognition technology to scan faces in photos to determine identities based on stored photos in user profiles.  In the complaint, Licata argues that the data stored by Facebook is derived, in part, from biometric identifiers collected from the image of a person's face.  The storage and use of this stored biometric data (which Licata alleges is millions of user faceprints) is done without prior notice and written consent in violation of BIPA.

Licata defines the "class" for the class action as all Illinois residents who had their faceprints collected, captured, received, or otherwise obtained by Facebook while residing in Illinois.

This will be an interesting case to watch.

Disclosure:  The author is an Illinois resident with a Facebook profile, so a potential plaintiff if the class is certified.

Monday, April 6, 2015

Use of Photos Without Permission Costs Lawyer $8,000

Now, here's an interesting (and maybe a little ironic) case out of D.C. involving use of stock photos without permission.  The plaintiff company claims that the defendant used two of the company's photos on the defendant's website without the company's permission.  The suit sought $150,000 for each instance.  The irony is that the defendant happens to be a patent lawyer.  Upon notice of the alleged infringement, the lawyer removed the photos, but didn't respond to the company's efforts to settle so the company filed the complaint.  The case eventually did settle, to the tune of $8,000.

Lesson?  You can't just copy or upload photos on your own site without permission - just because they are already on the internet does not necessarily make them fair game to everyone.

Wednesday, April 1, 2015

LinkedIn Endorsements and Attorney Ethics

I have written about the subject of ethical issues for attorneys in regard to LinkedIn endorsements a couple of times on this blog, including a post regarding the American Bar Association cautioning attorneys to be careful about misleading endorsements. Just last month, the New York County Lawyers Association Professional Committee issued a formal opinion on the ethical implications of attorney profiles on LinkedIn.  While the opinion is not binding on attorneys in other jurisdictions, it is instructive.  You can read the full opinion here.

In short, the NY Ethics Committee concluded that attorneys can maintain profiles on LinkedIn, including information about their education, areas of practice, skills, and recommendations written by other users. If an attorney's profile contains a description of areas of practice or skills or endorsements, then the profile may be considered attorney advertising and requires the disclaimers required by Rule 7.1.  Endorsements or skills do not, however, constitute a claim that the attorney is a "specialist" under Rule 7.4, so are not barred so long as the information is truthful and accurate.

In its opinion, the Ethics Committee cautioned attorneys to periodically review endorsements and recommendations made by other users to make sure they are truthful and not misleading.  While the Committee did not provide any specific guidance on what "periodic" means, it did note that it wouldn't obligate an attorney to review, monitor, and revise their LinkedIn sites on a daily or even weekly basis - just at "reasonable intervals."

An attorney should be careful in using the skills & expertise function on LinkedIn, and in allowing endorsements, so as not to violate any applicable ethics rules that could be seen as misleading. So, for example, if you are a real estate attorney who never goes to court, leaving an endorsement for "civil litigation" on your LinkedIn profile could be considered a violation of the ethics rules against false or misleading claims about the attorney's services, even if you did not put that information on your profile yourself.  

Thursday, March 12, 2015

Upcoming Webinar on Government Social Media Policies

Don't miss this upcoming free webinar on government social media policies:

Title:  What are You Forgetting in your Government Social Media Policy?

Date/Time:  March 18, 2015, 12:30 - 1:30 p.m. Central Time


  • Julie Tappendorf, Ancel Glink
  • Luke Stowe, City of Evanston, Illinois
  • Anil Chawla, ArchiveSocial
  • Kristy Dalton, GovGirl and GSMCON Conference Director (Moderator)
Key Takeaways:
  • Minimize risk for your agency & avoid a social media #fail
  • Essential elements to your comment/monitoring policy & other legal issues
  • Public record requirements: real life examples and legal case studies

This is a great prelude to the upcoming 2015 Government Social Media Conference & Expo in April, in Reno, Nevada.

Webinar registration information is here.

Tuesday, March 10, 2015

Parody Twitter Case Moves Forward Against City

We've written before about the Twitter account that was set up to parody Peoria Mayor Jim Ardis last year.  The account name was @peoriamayor, and the Peoria Mayor'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 Twitter account was set up 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.  

Last summer, 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.

Earlier this week, a federal judge denied the City's motion to dismiss the case, which means the case will proceed to discovery, and possibly a trial on the merits of Mr. Daniel's constitutional claims. If the case does go to trial, it would like be another year before the case is heard.

Tuesday, January 27, 2015

Police Officer Facebook Post Not Protected by First Amendment

A police officer was fired after she posted statements on the mayor's Facebook page that criticized the police chief for not allowing Greenville police officers to use their squad cars to attend the funeral of a police officer of another city who was killed in the line of duty.  After she was terminated, she sued the city, claiming that she was fired in retaliation for exercising her free speech rights under the First Amendment.  We posted previously here about the district court's ruling in favor of the city that the officer's posts were not protected by the First Amendment.  

The officer appealed to the Fifth Circuit Court of Appeals, which issued an opinion earlier this month also in favor of the city. Graziosi v. City of Greenville, (5th Cir. January 9, 2015).   Although the appellate court held that the officer was speaking as a citizen, rather than an officer, it found officer's statements not entitled to First amendment protection because her speech was not on a matter of public concern. Her speech, rather, was a rant directed at the chief which involved a dispute over an intra-departmental decision, which is not a matter of public concern.

Wednesday, January 21, 2015

DEA Settles Lawsuit Relating to Fake Facebook Page

The Drug Enforcement Agency (DEA) was sued after it created a Facebook page using information and pictures of a woman in a cocaine case. The DEA had taken pictures and information about the plaintiff from her cellphone after a 2010 arrest and then used the pictures and information to create a fake Facebook page intended to trick her friends into divulging possibly incriminating information. The government argued that the plaintiff "implicitly consented by granting access to the information stored in her cellphone and by consenting to the use of that information to aid in... ongoing criminal investigations."  Nevertheless, the DEA recently agreed to settle the lawsuit for $134,000.  

You can read more about the settlement here.

Monday, January 12, 2015

New Illinois Cyberbullying Law in Effect

Illinois Public Act 98-0801 just went into effect on January 1, 2015 to expand the state's bullying prevention law to prohibit students from being bullied through online sources, such as Twitter or Facebook, using computers not on school property.  The previous law only applied to cyberbullying during the school day from school-owned computers.  

The new provision allows districts to take action "if the bullying causes a substantial disruption to the educational process or orderly operation of a school."  This new provision applies "only in cases in which a school administrator or teacher receives a report that bullying through this means has occurred and does not require a district or school to staff or monitor any nonschool-related activity, function, or program."

Many school districts will have to update their bullying policies to incorporate the new law.  

Thursday, January 8, 2015

From 4 Common Mistakes in Government Social Media Policies

Check out the new article posted on called "4 Common Mistakes in Government Social Media Policies," written by Kristy Dalton.  The article includes "best practices" for developing a government social media policy by pointing out some common issues that are often overlooked, including the following:

1.  Tone Deaf

The article suggests that governments be careful about the tone of the policy - it recommends that it be helpful, encouraging and optimistic, and to ensure that it not send a message that the agency is opposed to social media.

2.  Excluding Elected Officials

Most social media policies cover government employees, but the article suggests that policies also cover elected officials.  

3.  Dated Upon Rollout

The article notes that policies that specifically name social media platforms may become outdated as new platforms (Snapchat) are introduced so frequently.

4.  Keeping it Under Wraps

According to the article, most agencies do not publish their social media policies - she suggest posting it on the government's website.  At the very least, make sure any part of the policy that addresses public interaction (comment policy, for example) be made public.

Monday, January 5, 2015

Court Overturns Student's Suspension for Social Media Rap Song

An aspiring student rapper posted on Facebook and YouTube a rap song with lyrics that criticized two athletic coaches for sexually harassing female students at his high school.  The song was recorded at a professional studio unaffiliated with the school, and posted to his personal social media sites from his personal computer.  After the school suspended the student, he sued the school claiming that the suspension violated his First Amendment rights.  The trial district court ruled in favor of the school board, but the Fifth Circuit Court of Appeals recently reversed, and awarded damages to the student.  Bell v. Itawamba County School Board (5th Cir. 2014)

The Fifth Circuit first determined that the song was composed and recorded off-campus, on his own computer, and posted to personal social media sites.  Second, the Court rejected the school district's argument that the song caused "substantial disruption" of school work or discipline. The Court questioned whether that defense to a First Amendment claim would even apply to a student's off-campus speech, although the Court ultimately did not rule on that issue. Instead, the Court held that even if the "substantial disruption" test does apply to off-campus conduct, the school district failed to show that the song created any "commotion, boisterous conduct, interruption of classes, or any lack of order, discipline and decorum at the school."  


Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content of this blog may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer.