“It’s my First Amendment right to say what I want!” The First Amendment is commonly invoked to justify personal expression. But did you know that the First Amendment applies only when the government is involved? For example, the First Amendment wouldn’t prevent a private company from firing an employee for making offensive comments about the governor. If the same employee worked for a government office, then the First Amendment might apply. As a lawsuit recently filed against the County of Maui illustrates, the First Amendment adds a layer of complexity for public employers dealing with controversial social media activity of its employees.
The First Amendment Lawsuit Against Maui County
Neldon Mamuad is a volunteer Liquor Commissioner for Maui County and part-time aide to a Maui County Council member. In July 2013, Mamuad started a Facebook fan page called “TAGUMAWatch,” named after a Maui police officer well-known for strict enforcement of parking and traffic violations. The page was intended to enable Facebook users to post about “Taguma sightings” and share their thoughts about him. TAGUMAWatch gained popularity quickly and evolved into a discussion forum on a variety of topics including news, traffic, and politics.
Mamuad claims that he didn’t publicize his involvement with TAGUMAWatch until a TV news story about the page named him as its creator. Mamuad also didn’t identify himself as a County employee when posting to the page or suggest that he spoke for the County.
The County somehow linked Mamuad to the page. Allegedly under pressure from the County, Mamuad changed the page’s name to MAUIWatch. A few days later, Officer Taguma submitted a complaint to the County alleging harassment via the page. After notifying Mamuad of the complaint and conducting an investigation, the County determined that Mamuad had engaged in harassment and cyber-bullying through social media and required him to enroll in an employee counseling program.
On March 3, 2014, Mamuad sued the County in federal court for violating his First Amendment rights. As of the time of this post, Mamuad’s motion for a TRO was pending.
When Does Employee Discipline Violate the First Amendment?
Most forms of internet expression qualify as “speech” under the First Amendment. That point has been driven home by recent legal developments, including a court decision that Facebook “likes” are protected by the First Amendment, a Ninth Circuit opinion recognizing that bloggers have the same First Amendment protections as traditional journalists, dismissal of an appeal from the termination of a public school teacher, and a federal lawsuit filed by a gun rights group alleging that the Honolulu Police Department censored comments on its Facebook page. Whenever the government is the one restricting speech, the First Amendment becomes relevant.
So how does a public employer know when it may discipline an employee for his or her social media conduct without violating the First Amendment? The general test in the Ninth Circuit, as spelled out in Mamuad’s TRO motion, looks at these factors:
- Did the employee speak on a matter of public concern?
- Did the employee speak as a private citizen or public employee?
- Was the employee’s protected speech a substantial or motivating factor in the adverse employment action?
- Did the government have an adequate justification for treating the employee differently from other members of the general public?
- Would the government have taken the adverse employment action even absent the protected speech?
Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013) (en banc). For a court to find that employee discipline violates the First Amendment, the first and third question must be answered in the affirmative, the fourth and fifth question answered in the negative, and for the second question, the employee must have spoken as a private citizen. The employee also has the burden to prove the first three factors. If the employee is successful, then the burden shifts to the government to prove the fourth and fifth factors.
Applying this test to employee social media conduct isn’t simple, but it helps government employers assess whether the First Amendment counsels against disciplinary action.
Complaint in the Mamuad lawsuit
Motion for TRO in Mamuad lawsuit (w/o attached declarations and exhibits)
Creative Commons image courtesy of Daigo Oliva on Flickr
The Hawaii anti-paparazzi bill eponymously named after its chief supporter is back after getting an extreme makeover, and it just took another step toward becoming law in Hawaii. The Senate Judiciary Committee has recommended passage of a revised version of the Steven Tyler Act (SB426, S.D. 1). The revised bill is a big improvement from the original version. It goes a long way toward remedying the problems discussed in my previous post on the Act, and now it looks much more like the California statute after which it was patterned. But despite the revisions, the Act remains quirky in some ways, and it still doesn’t answer the question of why we need a brand-new privacy law.
Here are the highlights of the revised bill. The revised bill:
- creates an actual tort for constructive invasion of privacy, not just one in the name. The original bill tried to create a constructive invasion of privacy tort, but the parameters of the tort were not well-defined.
- defines certain concepts that are key to liability under the Act, like “personal and familial activity.”
- makes it very difficult to impose liability on those publicizing or selling images or sound recordings that were captured in violation of the Act.
- carves out exceptions to liability, including one for law enforcement activities.
- creates a fairly novel process for raising a defense against invasion of privacy claims in court based on the First Amendment or its counterpart in the Hawaii State Constitution.
Now, let’s look at some of the features of the revised bill in greater detail.
Constructive Right of Privacy
The revised bill creates two types of invasion of privacy, one physical in nature and the other constructive. Both require an intrusion into land owned or leased by the plaintiff. This is an important revision because it gets rid of the “taking pictures at the beach” scenario (i.e., why should a celebrity complain about invasion of privacy if her picture is taken on a public beach?)
An intrusion, however, does not necessarily require a physical trespass onto the plaintiff’s property. Spying and eavesdropping could constitute intrusion, but does not necessarily involve a physical trespass. The tort of constructive invasion of privacy accounts for this distinction, stating that non-physical intrusions will be treated as invasions of privacy. The use of “visual or auditory enhancing devices” to probe into the plaintiff’s private affairs, regardless of whether it involves a physical trespass, counts as an invasion of privacy. That’s how constructive invasion of privacy works.
The original bill bungled the concept of constructive invasion of privacy by not tying liability to the use of visual or auditory enhancing devices. The revised bill fixes that problem.
“Personal and Familial Activity”
The original bill left out definitions of key concepts. A notable one was “personal and familial activity,” which is what the plaintiff must have been engaged in when the defendant captured images or recordings of him or her. The original bill did not define the term. The revised bill adopts the definition used in the California anti-paparazzi law.
Having a definition rather than none is a step in the right definition, but the definition is still too vague. The revised bill defines “personal and familial activity” as “intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of the plaintiff’s private affairs or concerns.” What range of activities does “the plaintiff’s private affairs or concerns” include? The revised bill doesn’t say.
Liability of Sellers of Images and Recordings
One criticism of the Act was that it punishes sellers of images or recordings of celebrities. The Act imposes liability on those who sold images or recordings that were captured in violation of the Act if they had “actual knowledge” of the violation and received compensation for the rights to the images or recordings. One problem of the original bill is that “actual knowledge” was not defined, so the level of intent needed to trigger liability wasn’t clear. The revised bill remedies that problem by defining “actual knowledge.” The definition requires “actual awareness, understanding, and recognition” that the image or recording was taken or captured in violation of the Act. That’s difficult to prove.
But the revised bill goes one step further in limiting publisher and seller liability. The plaintiff has the burden of establishing actual knowledge by “clear and convincing evidence.” This is the highest standard of proof in a civil matter (just below the “beyond a reasonable doubt” standard in criminal cases).
The plaintiff’s burden to prove the liability of publishers and sellers is reminiscent of the “actual malice” standard applicable in libel cases brought by a public official or public figure. In other words, the revised bill makes it very, very difficult to prove publisher and seller liability.
The revised bill also makes clear that there is no derivative liability for publicizing or selling an image or recording if it had been previously publicized or sold before without violating the Act.
Exceptions to Liability
The revised bill creates exceptions to liability, most notably for activities relating to law enforcement and investigation into illegal conduct. The revised bill also clarifies that the Act does not preclude suits for other legal or equitable relief under other theories, including the Hawai‘i anti-SLAPP law or a claim for publication of private facts.
First Amendment Defense
Perhaps the most interesting feature of the revised bill is an expedited process for handling defenses based on the First Amendment or its Hawaii counterpart, i.e., Hawaii Constitution, Article I, Section 4 (the revised bill does not cite specifically to Section 4, which is the section that parallels the First Amendment, so the expedited process apparently applies to a defense based on any portion of Article I is raised). The basic idea is to give first priority to resolving questions of the constitutionality of enforcing the Act in a particular situation.
Here’s how the expedited process works. If the defendant files a motion to dismiss a claim for violation of the Act based on First Amendment/Article I grounds, the case basically comes to a halt until the motion is decided. The court cannot look outside the allegations in the pleadings to decide the motion, and all discovery is suspended until the motion is decided. The court must hold a hearing and rule on the motion on an expedited basis. If the court denies the motion, the defendant may immediately appeal the denial.
The revised bill also flips the burden of proof. When the defendant files a motion to dismiss based on a First Amendment/Article I defense, the plaintiff has the burden to prove that, more likely than not, the plaintiff’s “claim is [not] barred by a defense based on the First Amendment of the United States Constitution or article I of the Hawaii State Constitution” (note that the quoted language in the revised bill omits the word “not”; that’s probably a typo). If the defendant wins the motion, it can recover damages, attorneys’ fees, costs, punitive damages, and other sanctions against the plaintiff and even the attorneys and law firm representing the plaintiff.
Thoughts on the Revised Bill
The revised bill is much better than the original version. I’m still not convinced, though, that the solution to the problem of overzealous paparazzi is a new law. Hawaii already recognizes the privacy tort of inclusion into seclusion, and that seems to cover the type of intrusion addressed in the concept of “constructive invasion of privacy.” The tort of intrusion into seclusion does not require a physical invasion into the plaintiff’s personal space. The use of visual or auditory enhancing equipment to remotely gain access to the plaintiff’s private affairs would seem already covered under existing law. Creating a new law to deal with the issue would add little new benefits while potentially creating more problems.
Take the expedited process for dealing with First Amendment issues, for example. According to a Standing Committee Report, the expedited process was created in response to constitutional concerns about the Act. As a lawyer who represents media defendants, I welcome extra procedural protections for airing out First Amendment issues. But I do think the expedited process is somewhat sloppy. The process gives too much incentive to a defendant to respond initially to a Tyler Act claim with First Amendment defenses, even unmeritorious ones. The defendant has nothing to lose and everything to gain by using such a tactic. By filing a motion to dismiss on First Amendment grounds, the defendant can freeze discovery in the case, shift the burden of proof to the plaintiff, and potentially reap the benefit of recovering fees, costs, and damages from the plaintiff, his or her attorney, and even the attorneys’ law firm! There are few circumstances in which a defendant should not raise a First Amendment defense. And on the flip side, true victims of constructive invasion of privacy might think twice before suing under Tyler Act due to the risks involved. Which again begs the question: Do we really need the Tyler Act?
Court Finds That State Law Claims Against Online Forum Operator For Misappropriation, Theft, and Tortious Interference Hinge on “Publisher” or “Speaker” Status–Stevo Design, Inc. v. SBR Marketing Ltd., 2013 WL 308996 (D. Nev. Jan. 25, 2013)
A Nevada federal court held that Communications Decency Act (CDA) immunity barred state tort claims asserted in a lawsuit involving the dissemination of sports betting information. The court’s holding was based on a liberal interpretation of what it means to be a “publisher” or “speaker” under section 230 of the CDA.
Stevo Design, Inc. (Stevo) sells licenses for access to its sports betting reports. SBR operates a website with a discussion forum where users may post messages relating to sports betting and handicapping and to send messages to other users. SBR encourages activity on its website by awarding loyalty points to users for doing different things on the website, including posting original content. The loyalty points may be redeemed for credits at offshore gambling websites. Stevo claimed that SBR and its users published Stevo’s protected works on the SBR website without obtaining a license.
In addition to bringing claims for copyright and trademark infringement, Stevo asserted a slew of state-law claims against SBR. SBR asked the court to dismiss these state-law claims. The court first determined if SBR qualified for CDA immunity. The key question was whether SBR had a hand in developing the online content at issue. If so, then SBR does not enjoy CDA immunity.
Relying on Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008), the court concluded that SBR did not “develop” the offending online content. SBR encouraged its users to post original content. It did not specifically encourage its users to publish information illegally on the website. The fact that SBR users could freely contribute loyalty points to each other further evidenced the minimal role that SBR played in monitoring the content of forum posts. That SBR “sporadically” tried to eliminate infringing content did not persuade the court that SBR was a developer of unlawful content—the CDA allows interactive computer services to perform some editing of user-generated content without becoming liable for all unlawful messages they do not edit or delete.
Having determined that SBR qualified for CDA immunity, the court next considered the impact of immunity on the state-law claims. CDA immunity effectively precludes the operator of the interactive computer service from being considered the “publisher or speaker” of user-generated content. As a result, only claims requiring the defendant to be the “publisher or speaker” are barred by CDA immunity. Applying the meaning of “publisher or speaker” status liberally, the court concluded that CDA immunity barred each of the state-law claims:
Misappropriation of trade secrets: Misappropriation involves either “acquisition” or “disclosure” of a trade secret. The court easily found that “disclosure” of trade secrets through user posts on the SBR website to require there to have been publishing or “speaking. The court found “acquisition” to be a closer question, but the only kind of acquisition alleged in the complaint involved user posts on the SBR website, so the CDA barred that kind of misappropriation as well.
Misappropriation of licensable commercial property: The court is not sure such a claim exists under Florida common law, but assuming it is a form of misappropriation, the plaintiff must have suffered competitive injury due to the defendant’s taking of information. Stevo alleged that SBR injured it giving away its copyrighted information for free. The only way SBR could have done that was by disclosing the information, i.e., it acted as a publisher or speaker.
Contributory misappropriation of licensable commercial property: This claim merely required that SBR induced others to speak or publish. The court refused to allow circumvention of CDA by alleging that the defendant induced publication or speech instead of itself doing the publishing or speaking. Since SBR did not tell users what kind of information to include in their posts or encourage infringing content, it enjoyed immunity from this claim.
Civil theft: Common law theft is defined as obtaining or using the property of another with intent to appropriate the property to his or her unauthorized use. The only plausible way SBR procured or used Stevo’s property was through publication. This claim is barred.
Tortious interference with contractual relations: This claim requires interference with a business relationship. The only interference that could be inferred from the complaint involved SBR’s publication of Stevo’s works. As this claim depended on SBR’s status as the publisher, it is barred.
The Senate Judiciary Committee of the Hawaii legislature just voted to approve the “Steven Tyler Act” (SB465), an anti-paparazzi law named after the Aerosmith lead singer, who personally showed up to testify in favor of the bill at a hearing today. The Tyler Act, which apparently was prompted by Tyler’s experience with paparazzi near his Maui home, attracted written testimony from an assortment of celebrities including Britney Spears, Neil Diamond, Tommy Lee, and Avril Lavigne. My favorite testimony letter was Ozzy Osbourne’s because it had a little cartoon drawing of Ozzy in the bottom right corner.
Cartoon from written testimony on SB465 by Ozzy Osbourne, 2/6/13
The final fate of the Tyler Act remains uncertain, but now that it’s taken an important step forward, I thought I’d share my thoughts on the bill in its current form. (The Tyler Act isn’t exactly related to technology law, but I’m blogging about it because I also practice in First Amendment, privacy, and media law.)
It’s important to understand that the Tyler Act mimics California’s anti-paparazzi law (which is currently facing its own legal challenges). As much as legal commentators panned the California law, the Tyler Act should attract its fair share of criticism, if not more, because its language is much more loose and vague. And that’s not good when it comes to writing a law. You know the Aerosmith song “I Don’t Wanna Miss a Thing”? Well, there are quite a few things the Tyler Act misses. Here are some examples.
The centerpiece of the California law is the creation of a new tort called “constructive invasion of privacy.” This kind of invasion of privacy is “constructive” in that it doesn’t require the defendant to have physically trespassed onto the plaintiff’s property. Use of a “visual or auditory enhancing device” is enough. So, a person using a telephoto zoom lens to snap pictures of J-Lo on the balcony of her home could be liable for invasion of privacy without having stepped foot onto J-Lo’s property. The idea is that use of devices to intrude into someone’s private space is just as invasive as physically entering into their space.
The Tyler Act uses the term “constructive invasion of privacy,” but it doesn’t exactly track the theory behind the tort. Here’s the main liability section of the Tyler Act:
A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.
See any reference to “visual or auditory enhancing device”? There is none. The Tyler Act says a person could commit a constructive invasion of privacy “through any means.” A cheapie disposal camera would do it. So would the audio recording app on your iPhone. And if devices lacking in any “enhancement” feature do the trick to capture a “visual image, sound recording, or other physical impression of another person,” query whether there was an invasion of personal space, constructive or otherwise. (Note that if an invasion into private space truly occurred, even in the absence of a physical invasion, Hawai‘i law already provides a remedy through the common law tort of intrusion into seclusion, which is a form of invasion of privacy.)
But the problems with the Tyler Act don’t stop there. The Act applies when the plaintiff is engages in a “personal or familial activity.” That language also appears in the California law, which is defined as “intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of the plaintiff’s private affairs or concerns.” Cal. Civ. Code § 1708.8(l). The definition excludes “illegal or otherwise criminal activity ….” The meaning of “personal or familial definition” is pretty vague even with that definition, but at least the California law includes a definition. The Tyler Act doesn’t! It’s anyone’s guess what “personal or familiar activity” means under the Tyler Act.
Similarly, the Tyler Act doesn’t define “offensive” or “reasonable expectation of privacy.” Nor does it contain an exception for publicizing matters of “legitimate public concern,” unlike the California law. This is problematic because it imposes liability for conduct not remotely resembling the opportunistic antics of paparazzi. Suppose a celebrity’s Kauai mansion catches on fire, spreading flames to her neighbor’s homes. The celebrity rushes out to the sidewalk with her kids, watching as firefighters put out the blaze. A photojournalist arrives on the scene and takes a picture of the celebrity and her kids from across the street. He then sells the photo to a local daily newspaper, which uses it alongside a front-page article about the fire. That’s hardly TMZ-style content, but under the vague language of the Tyler Act, the photojournalist and newspaper could be sued for constructive invasion of privacy.
Now, you might ask, why would the newspaper be liable? That’s because the Tyler Act says:
Any person who transmits, publishes, broadcasts, sells, offers for sale, uses any visual image, sound recording, or other physical impression, or who subsequently retransmits, republishes, rebroadcasts, resells, reoffers to sell, or reuses any visual image, sound recording, or other physical impression that was taken or captured in violation of this section shall constitute a violation of this section if:
(1) The person had actual knowledge that the visual image, sound recording, or other physical impression was taken or captured in violation of this section; and
(2) The person received compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.
Imposing liability for publishing information obtained in violation of the Tyler Act runs into First Amendment problems. Under Supreme Court precedent, the First Amendment protects speech that publishes the contents of a communication that was illegally intercepted as long as the publisher itself did nothing illegal to obtain the communication. See Bartnicki v. Vopper, 532 U.S. 514 (2001). Even more troubling is the Tyler Act’s authorization of courts to issue injunctions against future violations of the Act. Since publication of information obtained in violation of the Tyler Act could itself violate the Act, a court could literally issue an order “halting the presses.” That’s called a prior restraint, which is regarded by courts as the most offensive of First Amendment violations.
There are other problems with the way the Tyler Act is written – like the absence of an exception to liability for actions taken in a legitimate law enforcement investigation, or the fact that the Act is not limited to actions taken in Hawai‘i (unlike the California anti-paparazzi law, whose applicability is limited to actions within California) – but I think the point is made well enough. Although the Tyler Act is well-intentioned, more thought and care needs to go into making it a clear, constitutional law that doesn’t inadvertently turn well-meaning fans, reporters, and publishers into law-breakers.
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.