Discovery of Social Media Content Relevant to “Mental State” — Reid v. Ingerman Smith LLP, 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012)
Plaintiff Karissa Reid sued her employer for damages resulting from alleged sexual harassment. The defendants in the case requested discovery of information and documents relating to Reid’s social media accounts. The defendants argued that the postings and photographs from the public portions of Reid’s Facebook account contradicted her claims of emotional distress due to her alleged sexual harassment and termination. The defendants asked for discovery of the non-public portions of Reid’s Facebook account.
The court allowed discovery into the private portions of Reid’s Facebook account, finding that the publicly available portions of the account provided probative evidence of her mental and emotional state and could reveal the range of her activities—an important check against allegations that she no longer engaged in certain activities as a result of mental anguish. Although disclosure of Reid’s personal social media account could raise privacy concerns, the court ruled that privacy alone does not justify shielding information from discovery. The court cited the example of personal diaries, which are discoverable if they contain relevant information regarding contemporaneous mental states and impressions of parties. By analogy, the fact that Reid used privacy settings to allow only certain Facebook friends to see her postings did not give her a justifiable expectation of privacy as to the content posted on her social media accounts.
The court stopped short of ordering disclosure of everything in Reid’s social media accounts. The appropriate scope of discovery, according to the court, includes social media communications and photographs “that reveal, refer, or relate to any emotion, feeling, or mental state . . . [and] that reveal, refer, or relate to events that could reasonably expected to produce a significant emotion, feeling, or mental state.”
No First Amendment Protection for public school teacher’s comments on Facebook — In re O’Brien, 2013 WL 132508 (N.J. Super. App. Div. Jan 11, 2013)
We’ve seen a number of cases in which employees are fired for making comments on Facebook that they never thought would get around. (For a sampling, see my posts on Sutton v. Bailey, the BMW dealership decision, and Sumien v. Careflite.) Put In re O’Brien in this category of cases, except add a twist: Here, the employer is a public school district. Does the First Amendment (which applies only to government action) add a layer of protection to comments posted by a public employee on social media? Not in this case.
Jennifer O’Brien was a first-grade schoolteacher. O’Brien posted two statements on Facebook:
I’m not a teacher—I’m a warden for future criminals!
And the second:
They had a scared straight program in school—why couldn’t [I] bring [first] graders?
The Facebook comments were brought to the attention of the principal at O’Brien’s school (Ortiz). Ortiz was “appalled” by the statements. O’Brien’s Facebook comments also spread quickly throughout the school district, causing a well-publicized uproar.
The school district charged O’Brien with conduct unbecoming of a teacher. An administrative law judge (ALJ) found support for the charge and recommended O’Brien’s removal from her tenured position, and the acting commissioner of the school district agreed. The ALJ was particularly bothered by O’Brien’s lack of remorse in posting the comments. A New Jersey court adopted with the reasoning of the ALJ on appeal.
Both at the administrative level and on appeal, O’Brien argued that the First Amendment protected her Facebook statements. The court disagreed, applying the test stated in the Supreme Court’s decision in Pickering v. Board of Education that analyzes whether a public employee’s statements are protected by the First Amendment by balancing the employee’s interest, “as a citizen, in commenting on matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The court accepted the findings of the ALJ and Commissioner that O’Brien’s real motivation for making the statements was her dissatisfaction with her job and the conduct of some of her students, not a desire to comment on “matters of public concern.” Even if the comments regarded a matter of public concern, O’Brien’s right to express those comments was outweighed by the school district’s interest in the efficient operation of its schools. The court also rejected O’Brien’s arguments that there was insufficient evidence to support the charge against her, and that removal was an inappropriate penalty.
LegalTXTS Lesson: Public employers need to exercise more caution when disciplining employees for their activity on social media networks. Unlike the private sector, public agencies are limited by the First Amendment when regulating expression of their employees. But even public employees don’t have absolute freedom to say whatever they want. As O’Brien reminds us, when public employees make comments of a personal nature, or their comments interfere with the delivery of government services, such expression is not protected by the First Amendment.
The steady flow of memos and decisions on social media from the NLRB in the last two years regarding social media has left many employers bewildered about the do’s and don’ts of social media policies. The NLRB has been rather active in striking down social media policies for unlawfully restricting activity protected by Section 7 of the National Labor Relations Act (NLRA). In the midst of this confusion, allow me to direct your attention to a little feature with a heroic name – the Savings Clause. A Savings Clause is a statement that sets boundaries around a social media policy. It’s basically a disclaimer. It says something along the lines of, “this policy should not be interpreted to prohibit X,” and theoretically, that clarification should “save” a rule from being illegal. Pretty nifty, eh?
Now, before you think popping a Savings Clause into a social media policy will magically shield you from legal trouble, it’s a bit more complicated than that. The NLRB has spoken on Savings Clauses in social media policies since its Office of the General Counsel (OGC) issued the third memo on social media on May 30, 2012. The NLRB also weighed in on Savings Clauses in its September 18, 2012 decision striking down Costco’s social media policy (the first NRLB decision addressing social media issues); its September 25, 2012 decision striking down Echostar Technologies’ social media policy; and the OGC’s Advice Memorandum issued on October 19, 2012. The fact that the NLRB has issued all this “guidance” should give employers pause about thinking that Savings Clauses are simple to write. They’re not. But NLRB guidance suggests that Savings Clauses can be effective if written well.
Here are some tips on using Savings Clauses drawn from NLRB decisions and memos.
1. Having a Savings Clause is a good idea.
This might seem obvious, but it’s generally a good idea to include a Savings Clause in your social media policy. The NLRB was critical of Costco’s social media policy for not including any type of disclaimer stating that the policy was not intended to interfere with the employees’ rights to engage in activity protected by the NLRA. The NLRB did not go as far as to say that the policy’s other defects would have been cured by a Savings Clause, but the fact that it criticized a social media policy for not having any Savings Clause strongly suggests that having one could only help.
2. Savings clauses don’t save rules that explicitly prohibit concerted, protected activity.
There are some policies even a Savings Clause can’t make better. For example, the OGC’s May 30, 2012 Memo examined a policy that prohibited employees from posting information about employer shutdowns and work stoppages, and from speaking publicly about the workplace, work satisfaction or dissatisfaction, wages, hours, or work conditions. The Savings Clause in the policy stated:
This policy will not be interpreted in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.
The NLRB said that an employee reading the policy would reasonably conclude that the policy prohibited protected activities despite what the Savings Clause said. The lesson here is that a policy can’t forbid activity protected by the NLRA and then expect a Savings Clause to rescue the policy from being unlawful.
3. Use terms your employees can understand.
The Savings Clause in the policy we looked at in the last bullet point suffered from the additional problem of using the term “concerted activities.” The NLRB criticized the clause for not explaining to a layperson what the right to engage in “concerted activity” entails. Lawyers might understand what “concerted activity” or “protected activity” refer to, but employees without legal training might not. Avoid using legal terminology in the Savings Clause. Use plain English instead.
4. Don’t be vague.
A Savings Clause can’t be too vague, or it won’t end up “saving” anything. So what’s considered vague?
A Savings Clause stating that if the policy conflicts with law, “the appropriate law shall be applied and interpreted so as to make the policy lawful” is too vague, according to the NLRB’s Echostar decision. A good Savings Clause must be specific enough to give employees an idea of how the social media policy will be interpreted. A generic statement that the policy is intended to comply with the law means little unless the employer provides some context for the statement.
What if the Savings Clause made the policy subject to a specific law, like the NLRA? That’s better, but still not good enough. The OGC’s May 30, 2012 Memo disapproved of two Savings Clauses, one stating that the policy “will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act),” and another stating that the policy “will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.” The NLRB found both Savings Clauses too vague to cure the policies from being overbroad.
So just how specific should a Savings Clause be? That leads us to–
5. Identify the kind of activity being “saved.”
The OGC’s October 19, 2012 Advice Memo emphasized the importance of drafting rules that provide employees with context. “[R]ules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, so that they would not be reasonably construed to cover protected activity, are not unlawful,” the Advice Memo explained. A Savings Clause can help provide the needed context. The Advice Memo approved of Cox Communications, Inc.’s social media policy, which contained the following Savings Clause:
Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities.
This Savings Clause specifically identified the kind of activity that is permitted—employee communications regarding wages, hours, or other terms and conditions of employment—so as to eliminate any doubt that other rules in the policy might prohibit activity that is protected by the NLRA.
In sum, I hope these tips will help you get the most out of Savings Clauses.
Facebook entitled to Communications Decency Act (CDA) immunity as an “interactive computer service” — Klayman v. Zuckerberg, 2012 WL 6725588 (D.D.C. Dec. 28, 2012)
This is one of the few (but growing) cases recognizing that Facebook qualifies as an “interactive computer service” under the Communications Decency Act (CDA). In particular, the court finds that Facebook is an interactive computer service when acting as the publisher of a user-created Facebook page.
The plaintiff (Klayman), a Facebook user who is the chairman and general counsel of an organization called Freedom Watch, found a Facebook page titled “Third Palestinian Intifada.” This Facebook page “called for an uprising beginning on May 15, 2011, after Muslim prayers [were] completed, announcing and threatening that ‘Judgment Day will be brought upon us only once Muslims have killed all Jews.” This page caught the attention of the Public Diplomacy Minister of Israel, who wrote a letter to Facebook requesting that they take down this and related pages. Klayman alleges that Facebook initially resisted removing the page, but eventually did so “begrudgingly.” Klayman then filed an action against Facebook and its CEO, Mark Zuckerberg, in the District of Columbia, who removed the action to federal court. The action asserted claims of negligence and assault against the defendants and sought, among other things, injunctive relief and punitive damages of over $1 billion.
Facebook argued that it had immunity under the CDA, and the court agreed. First, the court found that Facebook meets the definition of an “interactive computer service provider” because its website gives its users the ability to create, upload, and share various types of information with multiple users. Second, the court ruled that the allegations supporting the negligence and assault claims are based on Facebook’s status as a publisher or speaker. Third, the court concluded that Facebook was not the “information content provider” because it did not contribute in any way to the contents of the Facebook page in question.
LegalTXTS Lesson: The analysis of CDA immunity in this case is straightforward, but it’s noteworthy for concluding that Facebook is an “interactive service provider” for purposes of the CDA. Not many have cases have addressed the issue. This case joins Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011), and Young v. Facebook, Inc., 20120 WL 42690304 (N.D. Cal. Oct. 25, 2010) (both cited in Klayman), as well as Gaston v. Facebook, Inc., 2012 WL 629868 (D. Or. Feb.2, 2012). Note, though, that the status of a social media website status as an “interactive service provider” could hinge on the functionality of the site at issue (e.g., Facebook newsfeed vs. Facebook ads).