Nurse Fired for Facebook Posts Shared by Coworker "Friend"

Today's lesson?   Your Facebook friends may not turn out to be so "friendly" so think carefully before accepting or making "friend requests."  

A nurse and paramedic at a non-profit hospital maintained a Facebook page with privacy settings that limited access only to her Facebook friends. Although the nurse did not list any hospital supervisors as "friends," she was Facebook friends with several of her coworkers.  One of those coworkers turned out to be less than "friendly" when he shared with hospital management the following statement posted by the nurse on her Facebook wall in 2009:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice.

Shortly after the nurse's coworkers took a screenshot of the post and showed it to a hospital manager, the nurse was suspended with pay.  She filed a complaint with the National Labor Relations Board (NLRB), but lost when the NLRB ruled in favor of the hospital. Two years later, after the nurse had accrued an extensive number of disciplinary "points," the hospital terminated her.   The nurse then filed a lawsuit in the district court of New Jersey against the hospital, challenging her termination on a variety of grounds, including violations of the Federal Stored Communications Act (SCA) and Invasion of Privacy relating to her Facebook postings from 2009.   Ehling v. Monmouth Hosp. Serv. Corp., (U.S. Dist. Ct. NJ, August 20, 2013).

With respect to the SCA claim, the court first determined that her Facebook posts were covered under the SCA because the communications were private based on the security settings on her Facebook account.  However, the court applied the "authorized user" exception to the nurse's posts because the coworker who accessed and shared the Facebook postings with hospital management provided the communications voluntarily to hospital management, and was not coerced or pressured to provide this information. The coworker was determined to be an "authorized user" because he was a Facebook friend of the nurse's. Therefore, the hospital was not liable under the SCA.

With respect to the nurse's claim that the hospital violated her right to privacy in accessing her Facebook account, the court found no intentional invasion by the hospital because the information was voluntarily provided by the nurse to the coworker, who in turn voluntarily provided it to hospital management.  

 

In finding in favor of the hospital on all counts, the court concluded that there "may have been a violation of trust, but it was not a violation of privacy."

Murder Conviction Vacated After Facebook Communication Between Juror and Witness

At the beginning of the murder trial of the defendant, the judge instructed the jury that they should not to talk to any witnesses, the defendant, or attorneys.  Nevertheless, one of the jurors (who knew the medical examiner through work) sent the witness a number of Facebook messages after her testimony.  The messages included the following:

 

Juror to Witness:  " I thought you did a great job today on the witness stand....I was in the jury...not sure if you recognized me or not!" 

 

Witness to Juror:  "I was thinking that was you. There is a risk of a mistrial if that gets out."

 

The witness notified the trial judge of the juror's communications.  Although the judge informed the lawyers of the communications, the judge did not allow the defendant's attorney to question the juror about the communications.  After the defendant was convicted of first degree murder, his attorney moved for a new trial based on the juror's communications and the judge's denial of his request to question the juror.  The appellate court denied the defendant a new trial, characterizing the Facebook communications as "mere interactions" between a juror and a third person. 

 

The state supreme court disagreed with the lower courts, finding that the judge should have conducted a hearing to determine whether the juror's communications with the witness was prejudicial to the defendant and his right to a fair trial.  The court acknowledges that the majority of cases dealing with juror communications were handed down long before social media and Facebook.  With new technology, and the ease of internet research, jurors are more likely to conduct their own research and investigations, increasing the risk of communications between jurors and third parties.  For that reason, the supreme court held, it is even more critical that judges address these third party communications prior to sending the case to the jury and risking a prejudicial outcome.  In this case, the supreme court determined that the trial judge should have immediately conducted a trial in open court after learning of the misconduct to have the juror and witness testify about their relationship and the effect of the communication on the juror's ability to serve on the jury. 

 

While the supreme court acknowledged that not every communication between a juror and a third party requires a judge to disqualify the juror, declare a mistrial, or grant a new trial, there was insufficient information in this case to determine whether any of these actions were necessary to ensure a fair trial. As a result, the supreme court remanded the case back to the trial judge to conduct a hearing.

 

You can read the case at State of Tennessee v. Smith (September 10, 2013). 

Student Can Be Disciplined for Off-Campus Social Media Activities

A high school student was suspended from school following a school district hearing because of threatening social media posts and text messages.  The student’s conduct included threatening to shoot people at the school and raping students, along with racist, sexist, and anti-Semitic comments. Friends of the disciplined student had raised concerns about the messages with a high school coach, who brought the allegations to the principal.  After the school district suspended the student for 90 days, the student and his father sued the school, administrators, and county under Section 1983 for violation of the student’s First Amendment rights.  The district court ruled in favor of the county. 

 

The Ninth Circuit Court of Appeals affirmed the district court, citing the U.S. Supreme Court ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist.  Wynar v. Douglas County School District, No. 11-17127 (9th Cir. Aug. 29, 2013). Under Tinker, schools can prohibit speech that "might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities or that collides with the rights of other students to be secure and to be let alone."  Here, the court had no trouble finding that it was reasonable for school authorities to foresee a substantial disruption of school activities and act based on the student’s speech.  Specifically, the Court held "[w]hatever the scope of the 'rights of other students to be secure and to be let alone,' without doubt the threat of a school shooting impinges on those rights. [Wynar's] messages threatened the student body as a whole and targeted specific students by name. They represent the quintessential harm to the rights of other students to be secure."

New Jersey Passes Social Media Privacy Law

I have reported in the past on state laws protecting employee social media privacy, including social media password laws adopted by Illinois and Colorado.  Just last week, New Jersey Governor Christie signed legislation that prohibits employers from requiring employees and job candidates to disclose social media usernames and passwords, similar to the bans adopted by 11 other states.  New Jersey's law is different from other states in one important area, however - the law exempts public safety employers (including the department of corrections, state parole board, county corrections departments, and state and local police departments) from the law.  New Jersey employers can require employees to provide business-related social media passwords, to conduct investigations to ensure compliance with laws and policies, and to view and use information available in the public domain. 

 

A previous version of this bill had been approved earlier this year, but was vetoed by Governor Christie, who proposed a variety of changes that were incorporated into the enacted law. 

 

You can read the new law (and see the changes that were incorporated from the introduced version of the bill) here.

Lawyers, Law Firms, and LinkedIn

LinkedIn is often described as the social media site of choice for professionals, especially lawyers, who may be concerned that Facebook and Twitter are too casual for serious marketing efforts.  LinkedIn is a great forum for lawyers to market themselves and their practices and connect with other lawyers and professionals without their message getting lost somewhere between pictures of cats and kids on their first day of school. 

 

Attorneys, however, must be constantly aware of their ethical obligations in using social media sites, even professional sites such as LinkedIn.  I wrote about this issue previously on the blog after the American Bar Association published an article raising concerns about the ethical implications of the "specialty" and "endorsement" features on LinkedIn.  Although there hadn't been an opinion or case dealing with this issue at the time of the ABA's article, New York has since weighed in on this issue in a recent Bar Association ethics opinion.

 

A New York law firm had requested an opinion from the New York State Bar Association's Committee on Professional Ethics as to whether it was ethical for the firm to use the "specialties" section of the online profile to describe the type of legal services the firm provides.  In a formal ethics opinion, the Committee determined that law firms could not list "specialties" on a LinkedIn profile of the law firm.  Individual attorneys, however, could list "specialties" in their profile but only if the lawyer had been certified in that area of the law by an appropriate organization or governmental entity.  Listing a specialty without being appropriately certified would be a violation of NY Ethics Rule 7.4(a), which prohibits a lawyer from stating that he or she is a specialist or specializes in a particular area of the law unless they are properly certified.  That same rule applies to law firms.

 

The problem with this opinion is that LinkedIn's "one size fits all" online profile does not take into consideration the special ethical obligations of lawyers or law firms.  Lawyers and law firms are cautioned to check their own state ethical rules to determine whether a similar rule is in place in their jurisdiction and modify their profiles accordingly.

Lawyer Disciplined for Advising Client to Clean up Facebook Page

A lawyer in Virginia had his law license suspended last month for five years after he advised his client to clean up his Facebook page.  The lawyer was representing a plaintiff in a lawsuit brought against a driver who allegedly caused the death of his wife.  Shortly after the defense filed discovery requests for screen shots and other information from the plaintiff's Facebook page, the Virginia lawyer instructed his paralegal to tell the client to delete certain photos.  The defense lawyers recovered the deleted photos before trial, and the lawyer was brought before the state bar disciplinary board for violation of ethical rules governing candor toward the tribunal, fairness to opposing party and counsel, and misconduct.  

Teen's Conviction of Harassment for Facebook Post is Upheld

A Pennsylvania court recently upheld a teen's conviction for the crime of harassment after she appealed the jury verdict against her. Commonwealth v. Cox.  The 18 year old had posted a comment on her Facebook page that the 15 year old victim "has herpes, Ew, that's gross. She should stop spreading her legs like her mother." The post received several "likes" from Cox's friends before it was deleted. The victim's mother reported the post to police, and the 18 year old was charged with the crime of harassment, which makes it illegal to communicate "to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures" with the intent to harass, annoy, or alarm the other person.  A jury found the teen guilty of harassment, and sentenced her to 6 months probation.

 

The teen appealed, and the appellate court upheld the conviction, finding that the evidence was sufficient to support the verdict and that the defense provided no evidence that the posting was for any other purpose than harassment of the victim.  “Contrary to Cox’s view and in light of the totality of the evidence, her misuse of the internet and social media was criminal,” the appellate court ruled.