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.

Teacher Fired over Facebook Photo Could Get Job Back

From the Employer Handbook blog comes an interesting case involving the termination of a teacher for posting a photo of her boyfriend touching her chest on her Facebook page.  According to the story, the teacher appealed her termination, and the grievance board determined she should be reinstated, finding that the lack of a social media policy gave teachers very little guidance on the type of social media conduct that could get them in hot water. 

You can read the story here:  Teacher fired over Facebook groping photo could get her job back

Post Authored by Julie Tappendorf, Ancel Glink

Student Social Media Passwords Protected Under New Law

On January 1, 2014, HB 64 becomes effective making it unlawful for an Illinois school to ask for a student's social media password.  There are a few exceptions to the ban that would allow access if the school has reasonable cause to believe the student's account includes evidence that the student has violated a school rule or disciplinary policy.  Schools are also allowed to monitor student activity on school equipment and enforce policies on use of school electronic equipment.

 

Post Authored by Julie Tappendorf, Ancel Glink

Florida Social Media Ethics Rules Challenged by Law Firm

A Florida law firm filed a lawsuit against the Florida Bar challenging the state attorney ethics rules. Specifically, the firm claims that recent amendments to the attorney advertising rules to now include social media sites violate the firm's First Amendment rights and are unconstitutionally vague.

 

In Searcy v. Florida Bar, the law firm of Searcy, Denney, Scarola, Barnhart & Shipley claims that the new rules are overly restrictive as they require all statements on social media to be "objectively verifiable." The new rules became effective in May, after the Florida Supreme Court approved the amendments to the advertising rules that removed a previous website exemption from the advertising rules.

 

The law firm had recently been found in violation of the "objectively verifiable" rule for certain opinions and statements about the firm's services and past cases on its website. The Florida Bar also found the firm's LinkedIn profile in violation because the subjective opinion of a former client was not "objectively verifiable" and because the LinkedIn site automatically described the firm's practice areas as "specialties."

 

The law firm claims that the rules are too vague to apply, and it isn't clear what information is allowed and what information must be removed from its website and social media sites.  The law firm claims that under the new rules, even Abraham Lincoln would have been found in violation:

 

"Indeed, Florida's rules are so broad that they would have subjected Abraham Lincoln to discipline for stating, in an 1852 newspaper advertisement, that his firm handled business with 'promptness and fidelity' — two words that are no more 'objectively verifiable' than those the Bar concludes violate its ethics rules here."

 

Although the case is challenging Florida's attorney ethics rules, it is a case worth watching by lawyers and law firms across the country.  This blog has raised questions about how LinkedIn's specialty and endorsement features might trigger compliance issues with attorney ethics rules, including advertising and certification restrictions, and the New York bar has already weighed in on this issue, finding that law firms could not list specialties on its LinkedIn profile.

Officer's Termination for Facebook Venting Upheld

A federal judge has ruled against a former police officer who sued the City of Greenville, claiming that City officials violated her free speech rights by firing her over comments posted on Facebook. Grazios v. City of Greenville.   The officer's comments criticized Police Chief Cannon's decision not to send representatives from Greenville's police department to the funeral of an officer who was killed in the line of duty earlier that month.

 

She posted her comments to both her personal Facebook page and the Mayor's campaign page. Her Facebook postings included the following:

"I just found out that Greenville Police Department did not send a representative to the funeral of Pearl Police Officer Mike Walter, who was killed in the line of duty on May 1, 2012. This is totally unacceptable. I don’t want to hear about the price of gas–officers would have gladly paid for and driven their own vehicles had we known the city was in such dire straights (sic) as to not to be able to afford a trip to Pearl, Ms., which, by the way, is where our police academy is located. The last I heard was the chief was telling the assistant chief about getting a group of officers to go to the funeral. Dear Mayor, can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty? Thank you. Susan Graziosi."

 

"Dear Mayor, can we please get a leader that understands that a department sends officers (to) the funeral of an officer killed in the line of duty?"

She was fired for violations of discipline and accountability, insubordination and rules of conduct, as laid out in Greenville Police Department's policy and procedure manual.

 

The district court judge first considered whether the officer spoke as a citizen on a matter of public concern, requiring two separate questions: (1) was the subject of her speech a matter of public concern and (2) did she speak as a citizen rather than an employee. In this case, the judge ruled that the officer's comments were "made from her perspective as a disgruntled police officer, not a concerned citizen."

 

According to the judge, the officer "did not speak out about any issue that related to the public safety or trust they had in the GPD but rather an internal decision of the department." As a result, the officer's comments were not afforded First Amendment protection, and her retaliation claim was dismissed.