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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.

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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).

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Facebook is being sued in a $15 billion lawsuit alleging that the popular social media company secretly tracked the Internet activity of its users after they log off (the First Amended Complaint is available here).  The case is a consolidation of nearly two dozen lawsuits filed in ten states, including one here in Hawaii (Quinn v. Facebook, Inc., 1:11-cv-00623).  The lawsuit alleges violations of the U.S. Wiretap Act, the Stored Communications Act, and Computer Fraud and Abuse Act.

In July, Facebook filed a motion to dismiss the lawsuit on the ground that the plaintiffs failed to allege sufficient injury.  At the hearing on the motion on October 5, Facebook’s attorneys argued that the plaintiffs haven’t identified the websites they visited, the kind of information that Facebook collected, or whether Facebook disclosed any information to anyone else.  The lawyer representing the subscribers countered that generalized allegations of harm are sufficient at this stage of the case, and that Facebook’s alleged practice of tracking their users’ Internet activity was not disclosed as part of Facebook’s privacy policy.   The court’s ruling on the motion to dismiss is pending.

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In two weeks, the NLRB has issued just as many decisions agreeing with the positions of the NLRB’s Office of General Counsel (OGC) on employee social media use, as stated in the OGC’s well-known guidance memos.  On September 18, the NLRB invalidated Costco’s policy prohibiting employees from making statements on social media that could damage the company or other employees’ reputations.  Yesterday, the NLRB publicly released a decision weighing in on the BMW dealership case that was discussed in the OGC’s August 18, 2011 memo. (The decision and briefing in the case are available here).

Here’s a quick review of the case for those not familiar with it.  A salesperson at a BMW dealership posted photos on Facebook showing a car that a test driver accidentally drove into a pond in front of a Land Rover dealership across the street (who shares a common owner with the BMW dealership).  The employee  included mocking comments about the incident in the post.  That same day, the employee posted photos on Facebook depicting the low-quality food and beverages that the BMW dealership provided at a sales event to promote a new car model.  Again, the employee accompanied the photos with sarcastic remarks.  The employee was discharged for the Facebook posts regarding the Land Rover incident.  The employee claimed that the primary reason for his discharge was the Facebook posts regarding the sales event, which he argued was protected activity.

The NLRB agreed with the findings of the Administrative Law Judge (ALJ) that the discharge was based on the Land Rover posts, which were not concerted or protected activity because they were in no way connected to the terms or conditions of employment.  The ALJ’s decision also stated that the sales event posts could constitute concerted or protected activity because they could be construed as legitimate concerns about compensation.  Salespeople at the dealership were paid partly by commission, which are tied to sales.  Sales could be negatively impacted by damage to the reputation of the dealership due to the low-quality sales event.  The NLRB found it unnecessary to pass on the sales event posts, however, because the discharge was based on the Land Rover posts.

The NLRB also struck down a rule in the dealership’s employee handbook stating:

Courtesy: Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The NLRB found the rule overbroad, as it could have the effect of prohibiting employees from making protected statements to other employees about their working conditions.  However, a dissenting member of the NLRB’s three-member panel found that the courtesy rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

LegalTXTS Lesson:  Here are three quick takeaways from the decision.

  1. Work rules regulating “offensive” social media activity should be vetted for any connection to concerted or protected activity, such as employee discussions about their compensation or the terms and conditions of their employment.
  2. “Courtesy” work rules similar to the one the NLRB struck down should be revisited to ensure they are specific enough to exclude protected activity.
  3. The positions taken in the OGC guidance memos are gaining credibility as the NLRB increasingly adopts those positions in published decisions.

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It’s time for updates to my post on the Hawaii case concerning censorship of user comments on the Honolulu Police Department’s Facebook fan page.  First, I’ve obtained a full copy of the complaint including the exhibits, which fleshes out the facts of the case.  According to the first two exhibits to the complaint, one of the plaintiffs (Christopher Baker) posted comments alleging that the HPD of violating the constitution and due process and criticizing the HPD and other government agencies for corruption and mismanagement.  In a separate comment thread, the HPD told another user: “comments depicting unlawful activity is a violation of the posting guidelines.  Your comment has been deleted.”  Baker responded with comments criticizing the HPD for “internet censorship” and exercising “internet nazi powers.”  An exchange between the HPD and Baker followed, and at some point the HPD told Baker: “@Christopher, you’ve had a history of using defamatory terms in your comments.  The posting guidelines are clear.  Dissenting opinions are appropriate but the use of defamatory comments such as ‘internet nazi powers’ are not.  Your comments have been deleted.”  Baker’s co-plaintiff (Derek Scammon) responded to the HPD’s deletion comment with his own: “So I take it that HPD doesn’t care much about allowing freedom of speech?  All the one-sided comments referring to posters who have been deleted seem a little forboding.  Does asking about deleted posts violate the posting guidelines?  I’d hate to get my post deleted for talking about posts that got deleted.”  Scammon separately engaged the HPD in a conversation on the HPD Page regarding the need for Honolulu residents to be allowed to carry concealed weapons.

Second, I’ve gotten copies of the motions for a temporary restraining order and preliminary injunction that were filed at the same time as the complaint.   The TRO motion was deemed moot at an August 22 status conference (the reason for this is unknown).  It is apparent, however, that the HPD is no longer banning certain users from commenting on the HPD Page.  Yesterday, the court held a status conference in which it deemed the preliminary injunction motion moot based on the HPD’s reversal of position and the agreement of the parties (the details of the agreement are not clear).  Another status conference is set for October 4.  We’ll follow the case and keep you posted.