Plug or Perish

Entrepreneur Magazine’s Daily Dose recently spoke with Damon Dunn about two recent cases on First Amendment protection for public employees’ Facebook “likes”.  We previously discussed the cases here.

Should a “Like” be protected as freedom of speech? Damon E. Dunn, a partner in the law firm Funkhouser Vegosen Liebman and Dunn Ltd., says public employees can bring retaliation claims based on First Amendment rights because the government employs them. Maybe not when speaking on behalf of their employer as part of their job duties, but certainly when speaking as private citizens.

. . . .

In the sheriff’s department firings, the judge found that the “Like” button was too generic to constitute expressive speech. Had it qualified as speech, the judge still might not have had enough context to ascertain whether the workers expressed an opinion qualifying for protection, Dunn says.  The Library of Congress employee, Dunn says, might be able to show that the page he “liked” was sufficiently specific so that one can infer his opinion involved a matter of public concern.

In cases involving private employees, Damon notes, “likes” may turn isolated statements into protected concerted activity protected by the National Labor Relations Act.

You can read the full Entrepreneur article here.

 

 

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Public Employees Sue After Being Fired for Facebook “Likes”

A federal judge in Virginia recently held that “liking” a Facebook post is not sufficiently expressive to warrant First Amendment protection.  One of the plaintiffs in Bobby Bland et al. v. B.J. Roberts alleged he lost his job with a sheriff’s department for liking a Facebook page belonging to the sheriff’s political opponent and characterized the “like” as a “statement of support”.  The court disagreed

[I]n cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record . . . Simply liking a Facebook page is insufficient.  It is not the kind of substantive statement that has previously warranted constitutional protection.    Continue reading

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Prosecutors Entitled to Occupy Protester’s Twitter Account

In a hashtag-heavy opinion, a New York judge “#denied” an Occupy Wall Street protester’s motion to quash a subpoena to Twitter for his account records.

Twitter informed the protester, Malcolm Harris, upon receiving the subpoena and, once he filed his motion to quash, said it would not comply with the subpoena until the motion was decided.

The judge focused on whether Harris – who was arrested during a protest in Brooklyn – had standing to quash a subpoena to a third party, either with or without being granted leave to intervene.  He analogized to cases holding that an individual has no right to challenge a subpoena issued to a bank or telephone company for its records because such records belong to the company, not the customer.  The court also quoted from Twitter’s terms of service Continue reading

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Toll of “Facebook Victims” Mounts

Although social media is no longer a new phenomenon, evidently even people who should know better still have not grasped that nothing on the Internet is confidential.  What’s more, there is no sure demarcation between private postings and those that spill over onto your resume like an indelible coffee stain.

Exhibit A is a high level General Services Administration official who recently made news (and got suspended) after pictures of his family’s taxpayer-funded “business trips” to Hawaii and Las Vegas showed up on Facebook.  A post by his daughter reportedly included comments like “The number one BEST part of the vacation. AMAZING.  Snorkeling at Black Rock in Maui” and photos of the official, Jeff Neely, grinning from a hot tub.  Emails also have emerged where Neely referred to a government-funded trip as his wife’s birthday present.  Neely has since developed an intimate acquaintance with the Fifth Amendment.

Next up is the school board member who, when contacted by a reporter about a racist post on his Facebook page, blamed his teenage son.  Continue reading

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Maryland Takes Lead in Banning Employers from Demanding FB Access

Maryland recently became the first state to ban employers from requiring prospective employees to let them access their social media accounts.  The law was passed in response to protests after the state demanded corrections officers’ social media passwords to search for gang affiliations.

Even in states where reviewing prospects’ Facebook accounts remains legal, employers may want to think twice before incorporating the practice into their hiring procedures.  Employers who require access to private pages risk losing qualified applicants who have nothing to hide but object to the intrusiveness.

There are also legal risks: for instance, a discrimination plaintiff needs to show that the employer knew he was a member of a protected class.  A potential employer who otherwise would not have known the job applicant’s religion or race is likely to inadvertently find out while scouring social media.  An employer who retains applicants’ or employees’ login information could also be subject to a lawsuit if the information is leaked or used by someone else in the office for improper purposes.   Continue reading

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Homeless Hotspots Create PR and Wage Controversies

Digital media opens up a world of possibilities for marketers but also can lead to PR nightmares when creative campaigns backfire by losing touch with real-world sensibilities.

The marketing agency BBH recently sparked an online debate by hiring homeless people to carry mobile Wi-Fi devices and wear t-shirts declaring “I’m [name], a 4G hotspot” and listing an access code.

The marketer compared the project – launched during the South by Southwest technology conference in Texas –to street newspapers sold by homeless vendors and said it inspired an “entrepreneurial spirit.”  While critics felt the project “symbolizes everything that’s awful about both South by Southwest and living in America in the 21st century” by turning “people [into] platforms” many of the homeless participants defended it in media interviews.

The New York Times reported that participants were paid $20 per day (as well as the donations they receive from Wi-Fi users) but BBH claims participants were guaranteed a minimum of $50 per day for six hours of work and that, based on the donations so far, the participants’ take will “significantly” exceed that amount.

It is nonetheless questionable whether BBH has complied with minimum wage obligations under the Fair Labor Standards Act.  Continue reading

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Plug or Perish

The Internet continues to generate localized forums for businesses and professionals to interface with the public and each other.  For example, FVLD Founding Member Vance Liebman was recently profiled by LinkedLocalNetwork, as a “different kind of lawyer”.  Vance also can be viewed discussing recent legal developments on CEOIntroNet.com, a members-only network allowing CEOs to interact with each other online.  The network originated in Philadelphia, expanded into Chicago last year and has other cities planned.  You can watch Vance’s interview here.

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Courts Mull Identifying Anonymous Commenters

Two recent cases deal with the protection of website commenters’ identities, one in a traditional media context and the other dealing with pseudonymous Tweets sought by a grand jury.

In re: Indiana Newspapers Inc. involved a comment to a story titled “Junior Achievement faces questions, audit” regarding financial troubles facing a culinary school construction project. Continue reading

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Texas Court: Internet Not Just for Voodoo Anymore

A Texan appellate court affirmed a murder conviction in a 2007 freeway shootout after finding that postings to the defendant Ronnie Tienda Jr.’s MySpace page were properly admitted against him during the trial.   The case shows how far Texas judges have come since the Internet’s early days.  In the infamous 1999 case St. Clair v. Johnny’s Oyster & Shrimp, Inc. a federal judge in the Lone Star State referred to the internet as a source of “voodoo information” and held that

While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant’s Motion. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules . . .

Unfortunately for Tienda Jr., much has changed since Y2K.  Continue reading

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Roommate.com Coda: Rabbis Need Not Share Kitchens With Hog Butchers

A federal appellate court held that the roommate matching site Roommate.com is not governed by the Fair Housing Act, disposing of discrimination claims by fair housing advocacy organizations.

The suit alleged that the websites violate the Act by requiring users to create profiles with, among other things, their gender, sexual orientation, and familial status and to provide the preferred characteristics of the roommate they are seeking.  Users could then perform a search that excluded groups that they do not view as desirable roommates.

The website originally sought to have the suit thrown out under the Communications Decency Act, which immunizes it for third party content posted to the site.  In a decision that reverberated throughout the web, at least among lawyers, the Court of Appeals for the Ninth Circuit held that, since the site required users to input the information and then created search mechanisms based on that information, the site itself could be considered a “content provider” and could be liable for its own content.  The ramifications of that decision were still playing out when the case returned to the court on the question of whether the FHA even applied to roommates. Continue reading

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Judge: No Privilege for Tech Blogger

A Chicago judge ruled that a technology blogger was not protected by the Illinois reporters’ privilege law and must disclose the anonymous source of allegedly confidential photos he published of an unreleased smartphone.

Judge Panter held that the website, TechnoBuffalo, does not qualify as a “news medium” entitled to protection under the Act.  The judge recognized that the statute defines “news medium” to include “any periodical issued at regular intervals whether in print or electronic format and having a general circulation.”  He acknowledged that TechnoBuffalo may have over a million readers.  Nonetheless, he found that:

The article at issue is an editorial posting that is part of a technology blog on TechnoBuffalo’s site. It does not “encourage a well-informed citizenry” to protect the source and type of confidential information disseminated by TechnoBuffalo in its blog posting about JBC’s client’s not-yet-released smartphone, and TechnoBuffalo’s anonymous “tipster” is hardly an example of a “source” of investigative journalism that requires the protection of the Act.

Shield statutes, however, typically are interpreted broadly and not limited to “investigative journalism” or the kinds of periodicals that a judge determines “encourage a well-informed citizenry”.  Continue reading

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Alderman Seeks To Preserve Social Media For G-8 Protesters

The Chicago Sun-Times reports that a Chicago Alderman plans to introduce legislation banning the Chicago Police Department from shutting down social media or cell phone access during the NATO and G-8 summits which will be held at McCormick Place in Chicago in May.

Although the department denies that it has even considered such measures, the alderman, Ricardo Munoz, cited the Bay Area Rapid Transit’s (BART) blocking of cell services during a protest last year.  Continue reading

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Plug or Perish

FVLD member Vance L. Liebman participated in a roundtable on small business owners’ reactions to the President’s State of the Union address, hosted by Walter Jacobsen and broadcast on CBS News on January 25, 2012.  Liebman observed that political parties are no longer as motivated to reach deals because they can raise more funds from their base by citing their opposition to the other party’s proposals.  You can watch the segment here.

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Wine Expert Sued for Yelp Retaliation

Cecelia Groark took to Yelp to complain that Bottled Grape owner Krunch Kretschmar had given away her seat to a wine tasting, which she had purchased through Groupon.  Kretschmar responded on Yelp claiming that he had twice emailed Groark and gave her seat away only after she failed to reply.

But, according to Groark’s lawsuit, Kretschmar did not stop there.  Rather than attributing the problem to miscommunication and letting it go, he allegedly set up a blog in Groark’s name which covered at least three of the four categories of defamation per se by claiming that she had embezzled from her employer to support a drug addiction, and, after jailhouse rehab didn’t work, turned to “the oldest profession” to support her habit.  Continue reading

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Cheerleader’s Suit Against Gossip Site Survives

A school teacher with a side-gig as an NFL cheerleader won a rare victory by surviving a website’s immunity defense in a case regarding comments about her posted to the site by third parties.  A poster to “thedirty.com” wrote that the plaintiff “slept with every . . . [Cincinnati] Bengal Football player”.  The site denied her request to remove the post and another poster wrote, among other things, that the plaintiff’s ex cheated on her and contracted STDs “so im [sic] sure [she] has” the diseases.   The website’s operator, who testified that he believed “you can say whatever you want on the internet,” may have pushed one button too many by disparaging the chastity of a Kentucky teacher/NFL cheerleader.

The Communications Decency Act immunizes websites from liability for third party content so long as they are not an “information content provider” which is “responsible, in whole or in part, for the creation or development of” unlawful content.  Most courts have held that even sites that solicit or encourage unlawful content are not “information content provides” as long as they don’t create the offending content themselves.

The court in Jones v. Dirty World Entertainment, however, relied on language from a 2009 federal appellate case that a site is “responsible” when it “in some way specifically encourages the development of what is offensive about the content.”  Continue reading

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