84% of Local Governments Have a Social Media Presence

According to a recent study conducted by the International City/County Managers' Association (ICMA), 84% of local governments responding to the survey have a social media presence.  The benefits of social media for governments include the ability to quickly and inexpensively communicate on upcoming meetings, activities, events, and projects important to residents and others.  

 

You can read more about the survey on the ICMA website at Eighty-four Percent of Local Governments Have a Social Media Presence | icma.org.

Ethical Advertising Rules Apply to Lawyer's Blogs

Lawyers are subject to a variety of rules of professional conduct, including restrictions on advertising.  These rules of professional conduct differ from state-to-state, and are often enforced by the state supreme court, state bar association, or state attorney disciplinary commission or association. 

 

The Virginia Supreme Court recently considered a case involving a state bar association investigation of an attorney's blog where the author discussed a variety of legal issues and cases.  Most of the cases discussed on the blog involved cases in which the attorney obtained favorable results for his clients.  The state bar association had ruled that the blog constituted advertising under the Virginia Rules of Professional Conduct and violated three separate professional rules of conduct.  First, the bar association determined that the blog violated Rule 7.1 of the Virginia rules prohibiting a lawyer from making "a false or misleading communication about the lawyer or the lawyer's services."  Second, the attorney violated Rule 7.2 because his blog posts about specific client results did not include prominent disclaimers.  Third, the bar found a violation of Rule 1.6 on the grounds that he disseminated client confidences without their consent. Based on these three violations, the bar association ordered the attorney to remove case-specific content for which he had not received client consent and to post a disclaimer on all case-related posts

 

The attorney appealed to the Virginia Court of Appeals, claiming that the blog constituted political speech, not commercial speech, so it was not subject to the advertising requirements. The court of appeals overturned the bar's ruling that the blog violated Rule 1.6, finding that the information was all public information and the attorney had First Amendment rights to report on what happened in a courtroom.  However, the court of appeals did find that the blog posts were commercial, rather than political, speech and required the attorney to post the following disclaimer:  "Case results depend upon a variety of factors unique to each case.  Case results do not guarantee or predict a similar result in any future case."

 

On appeal, the supreme court agreed with the court of appeals that the attorney did not violate client confidentialities in reporting on public case information.  The court also affirmed the court of appeals ruling that the speech was commercial, not political, and therefore subject to the advertising requirements.   The supreme court also upheld the disclaimer requirement for case-related posts. 

 

The attorney appealed to the U.S. Supreme Court, which denied certiorari. 

 

You can read the case here, and a detailed analysis of the case on the American Bar Association's website. 

Webinar tackles citizen engagement using social media

Great webinar hosted by the International City/County Management Association and others regarding citizen engagement on social media.  Q&A: FREE webinar tackles citizen engagement using social media | icma.org

Advertising and Promotions on Social Media

The cover article in this month's Practical Law The Journal, Transactions & Business (October 2013) is definitely worth a read for corporations and other businesses using social media to advertise or promote their business and activities.  The author of the article titled "Advertising and Promotions in Social Media" is Gonzalo E. Mon, a lawyer practicing in the area of advertising law. 

 

The article acknowledges the benefits of social media marketing, including reaching a larger audience more quickly and at a lower cost than traditional advertising.  The bulk of the article, however, cautions companies advertising their goods and services or running a marketing promotion about the risks and potential liability associated with advertising and marketing in social media.  These risks include legal issues relating to advertising claims and disclosures, endorsements and testimonials, and contests and sweepstakes, among others. 

 

The article states two basic principles of advertising law:

 

1. Advertisers must have a reasonable basis to substantiate the claims they make in their ads.
2. If disclosures are required to prevent a misleading ad, they must appear in a clear and conspicuous manner.

The article includes a number of tips for social media promotions, including the following:

 

"Planning Promotions in Social Media

 

When planning a promotion in social media, companies should:

• Ensure compliance with contest or sweepstake laws, as applicable
• Ensure compliance with any rules established by the platform on which the promotion will run
• Think through the potential legal and other issues and take steps to guard against them.
• Consider the Risks and benefits of turning over some control to customers
• Enter into contracts with any third parties that may be assisting the company with any aspects of the promotion" (Gonzalo E. Mon, "Advertising and Promotions in Social Media," p. 50)

The most valuable tip provided in this article is that companies must remember that laws governing ads and promotions apply equally to social media advertising as the laws apply to other platforms.

City Council Bans Social Media During Meetings

The Rochester City Council recently enacted a ban on tweeting and other social media activities during City Council meetings. The policy came after one of the city council members tweeted about a council discussion of a vacant house that had become a public hazard. After concerns were raised about the appropriateness of the tweets, the mayor suggested that the council members impose the ban.  You can read more about the ban and see the inappropriate tweets here. 
 

Rochester isn't the only government considering or adopting similar bans. Some government boards have found that social media activities by members can be distracting during meetings. Others are concerned that these activities might implicate open meetings laws. In Illinois, electronic communications during meetings (even on privately-owned devices) are subject to release under the Freedom of Information Act, leading some Illinois governments to adopt policies prohibiting or discouraging social media or other electronic communications by board members during meetings.

A Facebook "Like" is First Amendment Speech

Last year about this time, I reported on a case in Virginia where the judge held that clicking "like" on a candidate's Facebook page was not protected speech under the First Amendment.  Bland et al. v. Roberts.  That case involved employees of the local sheriff who supported the sheriff's opponent in the election.  To the employees' misfortune, their supported candidate lost the election, and the sheriff terminated them.  The employees sued, claiming that the sheriff retaliated against them in violation of their First Amendment rights by terminating them for engaging in protected speech activities - in this case, clicking "like" on the candidate's Facebook page.  The district court judge ruled in favor of the sheriff, finding that the mere action of clicking "like" on Facebook was not "speech."  You can read the original blog post on the Municipal Minute blog here.

 

The employees appealed to the U.S. Circuit Court of Appeals, Fourth Circuit.  That court issued its opinion today reversing the district court and finding that the employees did engage in protected speech activities in their conduct on the sheriff's opponent's Facebook page. Bland v. Roberts (U.S. Court of Appeals, 4th Cir. September 18, 2013). 

First, the court reviewed the Supreme Court political speech retaliation cases in determining which of the employees were protected and which employees were exempt as occupying a "policymaking or confidential position."  Under the Supreme Court's decisions in Elrod v. Burns and Branti v. Finkel, a public employee who has a confidential, policymaking, or public contact role has substantially less First Amendment protection than a lower level employee.  The purpose of the Elrod-Branti test is to ensure loyalty with employees in certain policymaking or confidential positions.  In this case, the court determined that the plaintiff deputy sheriffs were not in policymaking positions where their political allegiance to the sheriff was a job performance requirement. 

Second, the court looked at the conduct of the employees to determine whether their activities (supporting the sheriff's opponent on the opponent's Facebook page) were a substantial motivation for the sheriff's decision not to reappoint the employees.  The court looked at the sheriff's conduct as well, including his statements to employees that those who openly support his opponent would lose their jobs, and specifically referencing his disapproval of the decision of some employees to support his opponent's candidacy on Facebook. 

Third, the court addressed the question whether the employees' activities were speech.  As noted above, the district court had ruled that merely clicking "like" on Facebook was not speech.  The appellate court disagreed with the district court, stating that "clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement."  (emphasis added).  Particularly in this context, clicking "like" on a candidate's Facebook page sends a message that the user approves the candidacy.  The court found this to be pure political speech, as well as symbolic expression - a "thumbs up" symbol that the user supports the campaign by associating the user with it.  As the court noted, liking a candidate's campaign page "is the Internet equivalent of displaying a political sign in one's front yard." 

Finally, the court addressed the sheriff's argument that he is entitled to qualified immunity for not reappointing the employees.  The court determined that the sheriff is entitled to qualified immunity concerning the claims of the three sworn deputy sheriffs, because a reasonable sheriff could have believed he had a right to choose not to reappoint his sworn deputies for political reasons, including the deputies' support of his opponent.  However, qualified immunity only applies to the employees' money damages claims, not their reinstatement claims.

One justice issued a concurring/dissenting opinion, disagreeing with the majority's ruling applying qualified immunity to the sheriff's actions.  The dissenting justice stated that the sheriff should be held accountable for political retaliation.

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."