Facebook , Privacy & Freedom Of Speech


We are in the times, unfortunately, where “reality” TV is King.  I’ll save my rant on “reality” TV for another day.  Nonetheless, “the kids” are growing up in age where they live their lives with a camera documenting their every move to emulate their favorite “reality” TV stars.  Deuce signs and duck lips are wielded at a moment’s notice.  And, gone are the days where folks just keep some thoughts where.  New studies have shown that there is an automatic brain trigger from the mind to your thumbs that explains the phenomenon of detailing your every action from your morning moment with your favorite barista to your goodnight shout out to Baby Fruit Loop Loc’.

In this cyber world, do we have any expectation of privacy?  NO!!!  Posts on websites are never private. The act of posting information by means of social media undercuts privacy.[1]  Even when a user posts something on a private page, this does not preclude “friends” from reposting the information somewhere else on the internet.  We are, however, afforded some protections when it comes to social media websites.  In fact, social media titans have been cautioned to tighten their policies with respect to sharing private information about users with third parties, such as advertisers.[2]  Twitter and Google settled with the U.S. Federal Trade Commission over charges it put its customers privacy at risk by failing to protect their personal information.[3]  Both companies are serving a 20 year probationary period whereby they are subject to independent privacy audits.

What about the email-like function on social media websites?  Courts have generally held that public information on social media sites is admissible, but not personal email-type messages used on social media websites, unless the party seeking such information has direct knowledge of relevant emails.[4] Essentially Courts have ruled that it will not allow parties to go on fishing expeditions.  Private emails are protected by the Stored Communications Act.[5]

The Speech! What about my First Amendment Rights?  Generally you can say whatever you want that is not perceived as a real, direct and imminent threat to another.  As a general practice, I would also refrain from posting pictures and/or making statements that broadcast your illegal activity.  So next time you have the urge to take a snap-shot of your briefcase of dolla-dolla-bills, just remember your favorite attorney advises against that practice.  And, please, I will offer my best free legal advice here, if you are on probation and/or parole, do not make your PO’s job easy by posting pictures of a blunt in hand and a 40oz. on your lap.

Freedom of Speech hits the most points of contention in the employment context.  It is always important to remember that in the private employment context there is nothing to prevent an employer from taking action based on an employee’s posts online, unless the employer’s action triggers employment discrimination protections (race, nationality, gender, disability, etc.).  In government jobs, an employee’s online posts can be protected. Public employees do not surrender all their First Amendment rights by reason of their employment; rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.[6] Two inquiries guide interpretation of the constitutional protections accorded to public employee speech: the first requires determining whether the employee spoke as a citizen on a matter of public concern; if not, the employee has no First Amendment cause of action based on the government employer’s reaction to the speech, but if the answer is yes, the possibility of a First Amendment claim arises, and the question then becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public.[7]

I can’t quite remember where exactly I got this example from, but a local agency that seems to have a culture of premature discharge comes to mind.  I am reminded, coming from a profession where a few bad eggs can speak for the whole profession (insert your favorite lawyer joke here), that I encounter officers every day that should be commended for protecting our community.  But I digress:

Albuquerque Police Department (APD) officer involved in an officer involved shooting posts on his Facebook page under job title “human waste disposal.”  APD subsequently disciplines the officer and enacts a department social media policy.

In this instance APD’s actions do not violate the officer’s First Amendment rights, because, police department’s interest in regulating speech of employees outweighed First Amendment interest of police officers if statements resulted in discord among department members and public distrust of police.[8]

Thanks for reading, and THINK BEFORE YOU POST.

[1] 122 Am. Jur. Trials 421 § 3

[2] Id.

[3] Id.

[4] Beth C. Boggs, Misty L. Edwards, Does What Happens on Facebook Stay on Facebook? Discovery, Admissibility, Ethics, and Social Media Increasingly, Lawyers Are Mining Social Networking Sites Like Facebook for Information About Litigants, Witnesses, Jurors, 98 Ill. B.J. 367-69 (2010).

[5] Id at 368.

[6] Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006)

[7] Id.

[8] See Eaton v. Harsha, 505 F. Supp. 2d 948, 963-71 (D. Kan. 2007)

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