Friday, June 17, 2011

Where Does Social Media Happen? - COTW #45

In two recent en banc opinions, the Third Circuit held that schools cannot discipline students for MySpace parodies of their principals under the First Amendment. While these are not employment law cases, they address an extremely important question that impacts employment law: Where does social media happen? The majority opinions in both cases seem to take narrow views of the issue, utilizing the location of the individuals at the time of publication.

The Third Circuit’s Location-Based Test

In the first case, Layshock v. Heritage Sch. Dist., the student created a fake MySpace page of his principal that suggested the principal smoked blunts and did steroids. The student created the page from his grandmother’s house. The Court held that “[a]llowing the District to punish Justin for conduct he engaged in while at his grandmother's house using his grandmother's computer” would create “unseemly and dangerous precedent.” It would be akin to allowing school authorities to “reach into a child’s home and control his/her actions there.”

In the second case, J.S. v. Blue Mountain Sch. Dist., a student likewise created a fake MySpace page purporting to be her principal’s. It called him a “sex addict, fagass” who had sex in his office (among other, equally mature, insults). The student created the page on her home computer over the weekend. The Court found that the student “did not even intend for the speech to reach the school—in fact, she took specific steps to make the profile ‘private’ so that only her friends could access it.” A six-judge concurring opinion cut right to the point in its first sentence: “Because the school district suspended J.S. for speech that she engaged in at home on a Sunday evening, I fully agree with the majority's conclusion that it violated J.S.'s First Amendment rights.”

Judges Jordan and Vanaskie on the Next Level

The location-based test may have been sufficient to resolve these two cases, but Judges Jordan and Vanaskie wisely foresee that it will be insufficient in future cases. They note:
For better or worse, wireless internet access, smart phones, tablet computers, social networking services like Facebook, and stream-of-consciousness communications via Twitter give an omnipresence to speech that makes any effort to trace First Amendment boundaries along the physical boundaries of a school campus a recipe for serious problems in our public schools.
Indeed, it seems pretty obvious that off-campus social media publication can impact and disrupt school activity. The Jordan-Vanaskie concurrence notes that a student could “engineer egregiously disruptive events [by] tweet[ing] the organizing communications from his or her cellphone while standing one foot outside school property.” The First Amendment doesn’t protect falsely shouting “fire” in a public theatre, “and no one supposes that the rule would be different if the man were standing outside the theater, shouting in.” Social media enables you to shout “fire” into the theatre from anywhere at any time.

Employment Law Tie-In

What does this have to do with employment law? I think the cases provide insight into how the Third Circuit will address social media activities in the employment context. Instead of analyzing whether student social media activities disrupt school activities, think about future analysis of whether employee social media activities are work-related. Here are a few inquiries to which we may apply the Third Circuit’s analysis:

  • Balancing public employee free speech rights with public employer management rights
  • Are social media activities “just cause” for termination under a collective bargaining agreement?
  • Are terminations for inappropriate social media activities sufficiently work-related to deny an employee unemployment compensation?
  • Is social media harassment sufficiently work-related to hold an employer liable under discrimination statutes? I touched on this in a previous post, A Facebook Harassment Consideration.
Even though they’re student speech cases, I think the Third Circuit gave us a starting point: where did the initial publication occur? And, whose equipment was used (private computers in both cases)? The Court seems very comfortable in holding that off-campus student social media activities on private computers are detached from the school environment and therefore outside of the reach of school discipline. Will they similarly find that off-duty and off-site employee social media activities are not work-related? We’ll see. Also, as Jordan and Vanaskie point out, the simple location-based test will be insufficient in future cases… some difficult analysis is on the horizon.

Layshock v. Heritage Sch. Dist., 2011 WL 2305970 (3d Cir. June 13, 2011).
J.S. v. Blue Mountain Sch. Dist., 2011 WL 2305973 (3d Cir. June 13, 2011).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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