Co-Author: Joseph J. Lazzarotti
The pervasiveness of social media in professional and everyday communication is a hot button issue (discussed at length here), particularly for private and public employers and organizations. In fact, many organizations have adopted, or are considering adopting, social media policies for employees and providing training for how employees should interact in cyberspace. But what should those policies say and what should the training focus on?
To answer those questions, organizations should, among other things, develop and shape their policies, training and discipline concerning social media with an eye toward their particular businesses, regulatory environments, and whether they are in the public or private sectors. A number of recent developments show why this is critical:
· Two recent Third Circuit opinions handed down on June 13, 2011-- J.S. v. Blue Mountain School District and Layshock v. Hermitage School District (discussed below)-- illustrate the importance of educating employees (teachers and administrators) about student’s First Amendment rights concerning social media and when discipline is appropriate,
· FTC’s guidelines for endorsement of products or services are important for businesses whose employees are likely to be commenting online about the company’s products and services,
· The NLRB’s recent actions regarding social media use and the National Labor Relations Act are important for all employers, particularly those in traditionally union-dominated industries,
· The use of social media in the health care setting is presenting a range of challenges under HIPAA and patient privacy generally.
In addressing the extent to which school officials can regulate student speech, the Third Circuit Court of Appeals has held that school officials violated students’ First Amendment free speech rights by disciplining students for creating, outside of school, “fake” social networking profiles ridiculing their school principals.
In Blue Mountain School District, 8th grader J.S., using her home computer, created a MySpace profile in the name of her principal. The profile was presented as a self-portrayal of a bisexual Alabama middle-school principal named “M-Hoe,” and contained crude and vulgar content. Upon learning of the content, the School District suspended J.S. for 10 days. The Court held that because J.S. was suspended for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights.
In Layshock, Justin Layshock, a high school senior, using his grandmother’s computer, also created a MySpace profile in the name of his principal. The profile included “degrading” content regarding the principal. Upon learning of the profile, the School District suspended Justin for 10 days. In analyzing whether a school district may punish a student for expressive conduct that originated outside of the schoolhouse, did not disturb the school environment, and was not related to any school-sponsored event, the Court found the School District was prohibited from reaching beyond the school yard.
These decisions were based on the Supreme Court’s landmark case on the First Amendment’s application to public schools is Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In Tinker, a group of high school students decided to wear black armbands to school to protest the war in Vietnam. When school officials learned of the plan, they preemptively prohibited students from wearing armbands. Several students who ignored the prohibition and wore armbands to school were suspended. Eventually, the students brought suit alleging their First Amendment rights had been violated. The Supreme Court overruled the district and circuit courts, holding that student expression may not be suppressed unless school officials reasonably conclude that such expression will “materially and substantially" disrupt the work and discipline of the school.
These cases demonstrate the court's struggle in addressing social media content, especially where there are additional constitutional concerns when a party is a public entity. For many organizations, First Amendment issues will not be at issue, but there likely will be other considerations. As each and every industry is impacted by social media, attempting to address it in a one-size-fits-all manner without taking appropriate considerations into account is not only impractical, but in some cases unlawful. As these developments have shown, efforts to address social media must include an effective industry specific social media policy coupled with training programs to educate employees on the use of social media in all facets of employment and conducting the entity's business.