A recent study concluded that use of social media by jurors is infrequent with the implication that the practice is not a growing problem, but Eric P. Robinson, writing for the Citizen Media Law Center, says that the study takes a far too optimistic stance on the issue.

Given the rampant use of the social media by the general public supplying the juror pools and the difficulty of detecting its use by jurors, Robinson argues that the study’s findings are dubious. -db

From a commentary for the Citizen Media Law Center, February 6, 2012 by Eric P. Robinson.

Full story

Europe is considering a new law that would require Internet companies like Amazon and Facebook to obtain consent from consumers to  use their personal data.

The law would force companies to delete personal data forever at the consumer’s request or face fines for failing to comply. -db

From The New York Times, January 23, 2012, by Somini Sengupta with reporting from Kevin J. O’Brien.

Full story

Disqus which provides commenting services for news websites and blogs says that those using pseudonyms are the most likely to post quality comments that elicit positive feedback (likes) and replies.

Sixty-one percent use pseudonyms, 35 percent are anonymous and 4 percent use their real identity. -db

From the Poynter Institute, January 11, 2012, by Jeff Sonderman.

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As the social media becomes a useful tool for teachers to contact students about work or to help reluctant or shy students, abuses have surfaced with teachers making inappropriate contact leading in some cases to sexual abuse.

Citing free speech issues, a Missouri judge recently threw out a new law banning contact on the social media between teachers and students, but the need for boundaries remains as school districts struggle to balance free speech and student safety. -db

From The New York Times, December 17, 2011, by Jennifer Preston.

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A New Jersey elementary school teacher may lose her job for calling her students “future criminals.” An administrative law judge said she should be fired.

The teacher intended that her comments be seen only by  her Facebook friends. -db

From a commentary in Mobiledia, November 11, 2011, by Janet Maragioglio.

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Transparency is needed as shown by the examples of LinkedIn, Groupon and Demand Media who claimed to be more profitable than they were before they were forced to show their hand and their actual financial data as they prepared to go public, writes James Temple for the San Francisco Chronicle.

Temple opposes the bill introduced in U.S. senate that would increase the number of shareholders allowed before a company is  forced to provide complete financial data. -db

From a commentary in the San Francisco Chronicle, November 11, 2011, by James Temple.

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A Baton Rouge high school student sued school officials for suspending him and throwing him out of the honors club for criticizing a teacher on Facebook. The student made the comment from his home and removed it before school the next day.

The boy’s parents contend that the comment was intended as a joke and created no disturbance at the school so should be protected under the First Amendment. -db

From the Courthouse News Service, October 25, 2011, by Sabrina Canfield.

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The Catawba Valley Community College dropped charges against a student, allowing him back on campus after they suspended him for two semesters for criticizing the college’s aggressive marketing of a debit card company to its students.

But the college has yet to change its policy regarding free speech online and is still requiring the student to notify the college when using computers on campus. -db

From a commentary for Foundation for Individual Rights in Education (FIRE), October 14, 2011, by Adam Kissel.

Full story

Media coverage of the protests on Wall Street in New York City is picking up steam four weeks after people began to camp out near the site of their protests.

Increased media coverage has seemed to provide the movement with some legitimacy even as opinions of the protests vary. Protests are now planned in locations across the country. -db

From The New York Times, October 12, 2011, by Brian Stelter.

Full story

A North Carolina college student was thrown out of a classroom and barred from campus after he went on Facebook to criticize the college for its marketing of a debit card company to students.

“CVCC not only must reinstate Marc Bechtol, but also must revise its unconstitutional policy,” FIRE Vice President of Programs Adam Kissel said. “When criticism of the college’s financial partnership can get a student suspended and banned from campus, CVCC has caused a quite severe chilling effect.” -db

From a press release from the Foundation for Individual Rights in Education (FIRE), October 12, 2011.

Full release

A man indicted for threats on Facebook is challenging the federal cyberstalking law on the grounds that the law makes free speech a crime and is vague and overbroad. The Pennsylvania man is charged with making a series of threats on Facebook after he was fired from his job at a theme park.

The man made threatened an unidentified kindergarten class, his ex-wife and various local, state and federal law officers.

From The Legal Intelligencer, October 10, 2011, by Shannon P. Duffy.

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Mexican drug cartels are murdering journalists and bloggers using the Internet and social media to protest the cartels’ drug-related violence.

The Electronic Freedom Foundation makes some suggestions for Mexican citizens who want to continue the protests, “EFF recommends that bloggers who are concerned about their security and safety should post under a pseudonym, use Tor to prevent eavesdroppers from seeing the sites they visit and prevent websites from collecting data that might reveal their physical location, and use HTTPS to encrypt their private communications when possible.” -db

From a commentary for the Electronic Freedom Foundation, October 3, 2011, by Eva Galperin.

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Writing in ZDNet, Sam Diaz says that Google, Facebook and Twitter have the information that could enable them with the help of the analysis of real journalists to identify which blog sites, tweets and news outlets should be labeled “journalism.” Diaz says “news” is different from “journalism” and the latter must be identified and labeled as such because of its value. “Journalism is about fairness, accuracy, objectivity and responsible reporting, as well as values, standards and ethics,” says Diaz.

From a commentary in ZDNet, September 6, 2011, by Sam Diaz.

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With support from the American Civil Liberties Union, the Newark Secondary Parent Council (SPC) is asking the City of Newark to release correspondence from the city to Facebook’s Mark Zuckerberg involving  Zuckerberg’s $100 million gift to the Newark schools so that the parents will know of any stipulations the gift might carry.

Said Laura Baker of the SPC, “When Mayor Booker accepted this donation, he stressed the importance of getting input from the community members it affected most. If this is truly an investment in our city’s future, we need to see the transparency we’ve been promised.” -db

From the American Civil Liberties Union-New Jersey, August 23, 2011.

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With advent of the Google+ policy requiring users to identify by “the name your friend, family or do-workers usually call you,” Jillian York, a director for the Electronic Freedom Foundation argues that the benefits of pseudonyms outweigh the negatives, particularly for gays and other people subject to violence or harassment such as victims of domestic violence and particularly those opposing oppressive political regimes.

York writes, “Those in favor of the use of ‘real names’ on social platforms have presented a number of arguments: that real names improve user behavior and create a more civil environment; that real names help prevent against stalking and harassment by making it easier to go after offenders; that a policy requiring real names prevents law enforcement agents from “sneaking in” to the service to spy on users; that real names make users accountable for their actions.

While these arguments are not entirely without merit, they misframe the problem. It is not incumbent upon strict real-name policy advocates to show that policies insisting on the use of real names have an upside. It is incumbent upon them to demonstrate that these benefits outweigh some very serious drawbacks.” -db

From a commentary for the Electronic Freedom Foundation, July 29, 2011, by Jillian York.

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Chinese censors are failing to contain the flood of online messages about the wreck of a high-speed train outside Wenzhou that killed 40 people and injured 191. Messages total 26 million.

Citizens began the posts right after the accident and in many instances foiled the manipulations of government officials. In Wenzhou, officials ordered lawyers not to accept cases from families of victims without permission. After this came to light on the internet, they were forced to withdraw the order and apologize. Railway workers who had buried the first car of the oncoming train were forced to unearth it and take it to Wenzhou for an analysis. -db

From The New York Times, July 28, 2011, by Michael Wines and Sharon LaFraniere with additional reporting by Jonathan Ansfield and research from Adam Century, Li Mia, Li Bibo and Edy Yin.

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Saint Augustine’s college has banned a student from graduation ceremonies after the student posted comments on Facebook critical about how the college was handling its recovery from a tornado.

FIRE claims that in the absence of a policy sanctioning the punishment, the college improvised by declaring that a Facebook post challenging their decisions could keep a student from graduation ceremonies. The college said students had an obligation to protect the reputation of the college. -db

From a press release from FIRE, May 31, 2011.

Full release

As one journalist described it, he has “a personalized wire service” of over 2,000 sources on Twitter who provide him with tips and on-location news reports. While this sort of access is of inestimable value, it present immense difficulties as well.

Writing in GigaOM, Mathew Ingram says that with gathering so much information on the fly, reporters have to work harder than ever to separate fact from rumor and verify the credibility of sources, some anonymous. -db

From a commentary in GigaOM, May. 17, 2011, by Mathew Ingram.

Full story

Facebook hired a PR firm to persuade reporters and privacy advocates to write critical stories about Google’s Social Circle.

Facebook denied that they had acted unethically, “No ’smear’ campaign was authorized or intended. Instead, we wanted third parties to verify that people did not approve of the collection and use of information from their accounts on Facebook and other services for inclusion in Google Social Circles — just as Facebook did not approve of use or collection for this purpose. We engaged Burson-Marsteller to focus attention on this issue, using publicly available information that could be independently verified by any media organization or analyst. The issues are serious and we should have presented them in a serious and transparent way.” -db

From The New York Times, May 12, 2011, by Miguel Helft and Claire Cain Miller.

Full story

A state senator from San Leandro has introduced legislation that would require Facebook and other social networking sites to let new users establish privacy settings at the same time they register.

State Sen. Ellen Corbett, a Democrat, argues that users shouldn’t have to give up their private information by default. Opponents object to government imposition of privacy rules and assert that the bill could have unintended consequences that actually reduce privacy

The billed, SB242, passed the Senate Judiciary Committee and is headed for the Senate floor.

Full story.

Bill status, text and analysis is here.

The social networking site Facebook is arguing that when it comes to disclosing the backers of political advertising, size matters.

Federal regulations require political advertising to say who’s behind it and who the money came from. But there are exceptions. Some ads, such as bumper stickers, can be too small for disclosure statements. In a letter to the Federal Election Commission, Facebook makes a similar case for its “standard ads,” which allow 25 characters for the title and 135 characters of text.

According to the news Web site California Watch, California regulators have taken a tougher approach than the feds. While the ad itself might not provide space for a disclosure, the state’s Fair Political Practices Commission decided, any pages linked to the ad could.

Full story is here. Facebook’s letter is here.

WikiLeaks founder Julian Assange called Facebook the “most appalling spy machine that has ever been invented.”

Assange pointed out that a trove of information about people, their relationships, conversations and locations exists on the social media and that U.S. intelligence agencies could bring pressure on Facebook, Yahoo, Google and others to extract that information. -db

From NextWeb, May 2, 2011, by Matt Brian.

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Free speech rights of police officers in the social media are clashing with their law enforcement responsibilities as illustrated by a recent case in Albuquerque where a police officer listed his occupation on Facebook as “human waste disposal.” A TV station discovered the gaffe after the officer was involved in a fatal off-duty shooting in February.

In response to this and other instances across the country, police departments are developing social media policies. The courts have supported free speech limits when the speech of government employees is job related.

In The New York Times, Erica Goode quotes David. L. Hudson Jr., of the First Amendment Center about the viability of such limits, “The question of when employees can be disciplined for off-duty speech is hazy. Part of our core nature is what we do for a living, and to prohibit somebody from engaging in any kind of expression related to their job is arguably too broad.”

From The New York Times, April 6, 2011, by Erica Goode.

Full Story

Following Twitter’s example, Facebook has plans to help journalists use the network to greater advantage.
It wants to provide more information on its service to make it more than just a social site.

Facebook has launched a page that will be a resource for journalists with “best practices” showing how reporters have used Facebook effectively in reporting a story. It also wants to show how to increase audience participation in news content through open-graph plugins and “like” buttons. -db

From a commentary in GigaOM, April 5, 2011, by Mathew Ingram.

Full story

A first grade teacher from Paterson, New Jersey was relieved of her teaching duties after she posted on Facebook that she felt like a warden supervising future criminals. The teacher was suspended after parents complained.

The teacher’s lawyer said the comments on Facebook were on her own time and to friends, “My feeling is that if you’re concerned about children, you’re concerned about what goes on in the classroom, not about policing your employee’s private comments to others,” -db

From The New York Times, April 2, 2011, by Winnie Hu.

Full story

The California Supreme Court ordered the state appeals court to reconsider a case of a Sacramento juror required to release Facebook posts he made during a 2010 criminal trial. Both the juror and Facebook challenged subpoenas of the posts. -db

From The Reporters Committee for Freedom of the Press, April 1, 2011, by Rachel Costello.

Full story

Social media sites are struggling to achieve the right balance in remaining neutral during the Middle East
and North Africa uprisings and allowing freedom of expression. A recent case in which Flickr removed photos of officers from Egypt’s state security force demonstrated the difficulties.

Is it feasible in some instances to remain neutral when people could be in danger from a posting? Ebele Okobi-Harris, the director of the business and human rights program at Yahoo, which owns Flickr says, “Does a company take responsibility for the content?” What if someone wanted to post photos of doctors who do abortions?

From The New York Times, March 27, 2011, by Jennifer Preston.

Full Story

The younger generation is filing few libel suits for such as lies and character assassination, fueling speculation that they have greater tolerance of “hurly, burly Internet conversation.”

Or is it just that young people realize that bloggers have limited resources, decimating the chances of obtaining damages? -db

From the Minneapolis-St. Paul Star Tribune, March 14, 2011, by Kevin Giles.

Full Story

A Mississippi high school senior is suing his school administration in federal court for suspending him for a rap song he wrote off campus in his free time and posted on Facebook.

The song criticized two coaches he observed who allegedly flirted with female students and contacted intimate  body parts of the students. The senior was sentenced to seven days of suspension and five weeks of alternate school. -db

From Courthouse News Service, February 28, 2011, by Tracey Dalzell Walsh.

Full Story

Claiming among other things that the Mahopac Central School District allowed anti-Semitic comments in their daughter’s middle school newspaper, parents sued the district.

In their complaint, the parents cited the Hazelwood v. Kuhlmeier standard that  the administration should have censored the newspaper in support of the educational goal of fostering tolerance and preventing discrimination. -db

From Student Press Law Center, February 18, 2011, by Aly Brumback.

Full Story

While conceding that the social media did not cause the Egyptian revolution, Sam Gustin in Wired writes that the social media made significant contributions to the revolution’s success, a development that offers hope to repressed peoples of the Middle East.

Gustin quotes Sascha Meinrath of the New America Foundation’s Open Technology Initiative: “In the same way that pamphlets didn’t cause the American Revolution, social media didn’t cause the Egyptian revolution. Social media have become the pamphlets of the 21st century, a way that people who are frustrated with the status quo can organize themselves and coordinate protest, and in the case of Egypt, revolution.”

From a commentary in Wired, February 11, 2011, by Sam Gustin.

Full Story

After a jury foreman wrote on Facebook during the trial of alleged gang members that the proceedings were boring, defense attorneys issued subpoenas to Facebook and the foreman for the postings.

The judge ordered the foreman to authorize Facebook to release the postings. That order was upheld by the appeals court without comment. -db

From The Reporters Committee for Freedom of the Press, February 11, 2011, by Rachel Costello with additional reporting by Lyndsey Wajert.

Full Story

American Medical Response of Connecticut agreed to settle a suit brought by the National Labor Relations Board (NLRB) after the company fired an employee for criticizing her boss and calling him derogatory names on Facebook.

The NLRB contended that the firing was illegal in that employees have the right to discuss workplace issues with fellow workers and others. The company agreed to revise their rules governing discourse on the Internet regarding work conditions. -db

From CNET, February 7 2011, by Steven Musil.

Full Story

A Sacramento Superior Court judge gave a juror 10 days to comply with an order to turn over postings he made on Facebook last year during a trial concerning a gang beating. Lawyers for the Killa Mobb gang are asking for the postings to make sure that the juror was not biased.

A lawyer for the juror Arturo Ramirez said that surrendering the postings would violate the privacy rights of his client and promised to appeal the order. -db

From the Sacrament Bee, February 6, 2011, by Andy Furillo.

Full Story

Los Angeles Times
January 29, 2011

With a few phone calls to the likes of YouTube, Facebook and Twitter, the Egyptian government  stymied the social media, effectively limiting its role in organizing the demonstrations against President Hosni Mubarak. -db

San Francisco Chronicle
January 29, 2010
By Bob Egelko

SACRAMENTO COUNTY – A high school sophomore suspended for calling his teacher a “fat ass” on Facebook had the infraction erased from his record after his principal conceded that the posting was not disruptive to the school environment. The American Civil Liberties Union had argued that the boy’s speech was protected under the First Amendment as it did not create “a material and substantial disruption” at school. -db

A former student at a Florida high school who was suspended for Facebook posts criticizing a teacher settled with the school district. The district expunged the record of the suspension and paid $15,000 in attorney’s fees. -db

Student Press Law Center
January 20, 2011
By Aly Brumback

FLORIDA – A former Pembroke Pines Charter High School student suspended for critical Facebook postings about her teacher has settled with the school after a three-year legal battle.

Katherine “Katie” Evans signed the settlement in November, in which the school agrees to remove any record of her suspension or the initial incident and pay $15,000 in attorney fees and $1 in nominal damages. The school signed the settlement in December.

“At the end of the day we got everything that we asked for; we got an incredible ruling from the judge,” Evans’ attorney Matthew D. Bavaro said. “This case was never about money, it was about standing up for Katie’s First Amendment rights and the removal of the documents from her file, and we achieved it all.”

On Feb. 12, U.S. Magistrate Judge Barry Garber ruled that Evans’ Facebook post was protected under the First Amendment. He also denied principal Peter Bayer’s motion to dismiss the case and his qualified immunity defenses.

Randall Marshall, legal director of the ACLU of Florida, said once Garber’s decision was released, it took care of most of the litigation and it made sense to settle.

Evans was suspended for disruptive behavior and cyberbulling in 2007 after creating a Facebook page critical of her Advanced Placement English teacher. Evans wrote, “Ms. Sarah Phelps is the worst teacher I’ve ever met. To those students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and her insane antics: Here is the place to express your feelings of hatred.” Evans was also removed from her AP-level classes by Bayer.

Bavaro said he found the punishment in this case unique.

“Many of the cases that have been filed around the country dealt with threats or advocating drug use or illegal activity,” he said. “In this case, Katie’s speech was maybe insulting but rather benign.”

Evans, now a student at the University of Florida, removed the page a few days after it was created when three commenters on the page showed support for the teacher.

Marshall said school officials were not aware of the page before Evans took the page down and the teacher did not see it while it was still up.

“It’s hard to imagine that anybody could seriously claim that a teacher was somehow cyberbullied or anything else with that kind of posting,” he said.

Evans filed suit in 2008 in the U.S. District Court for the Southern District of Florida, seeking an order for the school to expunge the discipline from her record, a declaration that Bayer violated her constitutional rights, attorney fees and nominal damages.

Both Bavaro and Marshall expect the law will soon have to catch up to technology.

“[There’s] no doubt in my mind,” Bavaro said. “The law is clearly going to have to adapt and establish First Amendment principles in social networking situations.”

“Without a doubt. I think we will increasingly see cases that involve not only students but perhaps teachers as well,” Marshall said. “I think we’re seeing those across the country already, but it certainly is a trend I think we’re going to see more and more of.”

Evans was not available for comment. E-mails and calls to Bayer and his attorney, E. Bruce Johnson, were not returned.

Copyright 2011 Student Press Law Center     FAC Content Use Policy

While the Blockowicz parents suffered greatly from scurrilous posts about their daughter, First Amendment Center’s Douglas Lee says their attempt to force a website to remove the posts was rightly denied in federal court thus making the internet “an even freer environment for speech.” -db

First Amendment Center
Commentary
January 27, 2011
By Douglas Lee

Speech in the United States never has been freer than it is now on the Internet.

In every other mass medium — newspapers, magazines, broadcast stations, billboards and pamphlets — the person or entity that publishes a defamatory statement can be just as liable as the person making it.

In cyberspace, however, website hosts are immune from such liability. In 1996, Congress passed the Communications Decency Act, which states in part that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other, simpler words, website hosts are not liable for what others post on their sites, no matter how offensive, invasive of privacy or defamatory.

Not surprisingly, subjects of Internet attacks have tried to outflank the CDA’s protections. So far, those efforts have been unsuccessful, regardless of how sympathetic courts might be. Take, for example, the case of the Blockowiczes.

David Blockowicz is a Chicago-area accountant. He has been married to his wife, Mary, for more than 40 years. They have four children, including daughters Lisa and Megan. Lisa teaches elementary students in the Chicago Public Schools.

In the 1990s, Megan married and then divorced Joseph Williams. David, Mary and Lisa claim that Williams abused Megan and that, since the divorce, Williams and Michelle Ramey have posted false statements about them on numerous websites, including Facebook, MySpace, ripoffreports.com and complaintsboard.com.

Specifically, David, Mary and Lisa claim that Williams and Ramey, under false usernames, posted statements that David sexually abused his children, that Mary and Lisa were investigated by Nevada Child Protection Services, that Lisa uses several aliases and that Lisa is a thief, con artist and lesbian.

In 2009, David, Mary and Lisa sued Williams and Ramey in federal court in Chicago. (Interestingly, Megan was not a party to the suit and apparently did not cooperate with it.) Though the Blockowiczes sued for compensatory and punitive damages, their primary interest was in obtaining an injunction prohibiting Williams and Ramey from posting further statements about them and requiring Williams and Ramey to remove all previously posted statements. The Blockowiczes also sought an order requiring the websites to remove the defamatory posts.

Although it is unclear whether Williams and Ramey ever received notice of the suit, the judge held that the Blockowiczes made sufficient efforts to serve them and deemed Williams and Ramey served. He then entered a default judgment and an order requiring Williams and Ramey to remove the statements. The judge then went a step further and ordered the websites to make “reasonable efforts” to remove the statements.

Despite the fact that they had not been parties to the case, all but one of the websites complied with the judge’s ruling. Ripoffreports.com, however, did not, insisting it was not bound by the order.

The Blockowiczes then sought an order specifically requiring ripoffreports.com to remove the statements. Citing Rule 65(d)(2)(C) of the Federal Rules of Civil Procedure, the Blockowiczes argued that the court could require ripoffreports.com to abide by the order because the site knew about the order and was in “active concert or participation” with Williams and Ramey’s defamation.

The judge, perhaps a bit sheepish about entering the injunction against the non-party websites in the first place, denied the Blockowiczs’ request, holding that ripoffreports.com was not aiding and abetting Williams and Ramey.

On appeal, the 7th U.S. Circuit Court of Appeals affirmed. In a decision announced in late December, the court held that ripoffreports.com was not in active concert or participation with Williams and Ramey in violating the injunction because it had done nothing since the order was entered.

The site’s and its owner’s “mere inactivity is simply inadequate to render them aiders and abettors in violating the injunction,” the 7th Circuit wrote in Blockowicz v. Williams. “The record indicates nothing more than that [they] have ignored the injunction. … With sympathy for the [Blockowiczes], we conclude that Rule 65(d)(2)(C) is not the appropriate mechanism for achieving the removal of the defendants’ posts.”

The “appropriate mechanism,” the 7th Circuit court suggested, is seeking to hold Williams and Ramey in contempt for refusing to remove the statements. While legally available, that mechanism is of little practical value in a case in which neither defendant can be located. From the Blockowiczes’ perspective, then, their case accomplished little.

For website hosts, however, the case accomplished much, establishing further protection for their sites and making the Internet an even freer environment for speech.

Copyright 2011 First Amendment Center     FAC Content Use Policy

Courthouse News Service
January 11, 2011
By Bridget Freeland

The parents of a seventh grader sued two of their daughter’s classmates and their parents for defamation alleging that the parents allowed their children to hack into the girl’s Gmail, pose as the girl and post “vile, sexual and violent” comments including that the girl was pregnant by her brother. -db

All agree that an employee making critical remarks on Facebook about her company and supervisor violated company policy, but did the company violate federal labor law by firing the woman? -db

Citizens Media Law Project
Commentary
December 24, 2010
By Andrew Mirsky

A Connecticut company suspended and then fired an employee for making disparaging comments on Facebook about the company and about her supervisor.

Not in dispute is that the employee’s actions violated the company’s social media and other personnel policies, which (among other things) prohibited depicting the company ‘in any way’ on Facebook or other social media sites or from “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

In dispute is whether that social media policy – and the company’s actions in enforcing the policy – violated public policy, in particular Federal labor law. This came into fast relief when the National Labor Relations Board (NLRB) subsequently filed a complaint against the company, charging the company with violations of the employee’s rights under the National Labor Relations Act (NLRA).

The company is American Medical Response (AMR), an ambulance service provider. The incident followed a customer complaint about the employee’s work, when the employee’s supervisor asked the employee to prepare a report about the incident. At that point, the employee sought but was denied representation from her union.

Later that day, the employee posted negative remarks about her supervisor and AMR on her personal Facebook page, through her home computer. It appears that at no time did she use AMR’s technology or services to conduct her actions.

According to the New York Times story about the case, the employee’s grievance – and subsequent social media commentary – related primarily the fact that her supervisor barred a representative of the Teamsters to assist her in preparing her report.

The employee’s Facebook comments sparked an exchange of further commentary by other AMR employees, and further disparaging comments by the employee about the supervisor. That prompted her suspension and later termination.

Two important things to note about this case:

1. “Concerted Activity” under NLRA.

As the NLRB stated in its press release about the case, “the employee’s Facebook postings constituted protected concerted activity” under the NLRA. “Protected concerted activities” under the NLRA include the right of employees to “Discuss wages, working conditions or union organizing with co-workers or a union” and “Act with co-workers to improve working conditions by raising complaints with an employer or a government agency”.

Employers may not, among other things, “Fire, demote, transfer, reduce hours or take other adverse action against employees who join or support a union or act with co-workers for mutual aid and protection, or who refuse to engage in such activity.” (emphasis added)

According to the New York Times, this case is the first where the NLRB interpreted its powers to include regulation of employer conduct related to employee activities in social networking.

What is not clear is whether the NLRB would have filed this case – and whether this would have constituted “protected concerted activity” – had the employee’s conduct been limited to solo Facebook complaints, rather than engaging with co-workers and an online community.

2. Social Media Policies Violative of NLRA.

As described in the New York Times, AMR’s policies “barred employees from depicting the company ‘in any way’ on Facebook or other social media sites in which they post pictures of themselves.” Another policy prohibited “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

According to the NLRB, “Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”

This view is troubling if only in the sense that these types of policies and provisions are common for companies adapting to social media. As Bret Cohen of Hogan Lovells wrote recently about the case, “Though such policies are most likely to be invoked when employees post material to the Internet or social media sites that exhibit clear insubordination or disloyalty to the company, the NLRB was clear in expressing its concern for the possibility for companies to use the policies to stifle union-related employee communications.”

The case is set for hearing on January 25, 2011.

Copyright 2011 Citizens Media Law Project      FAC Content Use Policy