Employee Blogs

U.S. Marine Faces Uphill Battle in First Amendment Challenge

What happens when the First Amendment collides with military decorum and respect for chain of command?  

It looks like we'll get to find out as the matter of Sgt. Gary Stein, the Marine who on a Tea Party Facebook page slammed President Obama and threatened to disobey his orders, rolls ahead. 

Jurisdiction: 

Subject Area: 

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Social Media Policies: Fed Labor Law Problem?

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.”

Subject Area: 

Attorney Registration and Disciplinary Commission of Illinois v. Peshek

Threat Type: 

Disciplinary Action

Date: 

08/25/2009

Party Receiving Legal Threat: 

Kristine Ann Peshek

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Administrative

Court Name: 

Hearing Board of the Illinois Attorney Registration and Disciplinary Commission

Publication Medium: 

Blog

Status: 

Pending

Description: 

The Illinois Attorney Registration and Disciplinary Commission filed a disciplinary complaint against a former Illinois assistant public defender, Kristine Ann Peshek, for revealing confidential information about her clients and "assisting a criminal or fraudulent act" on her blog, "The Bardd [sic] Before the Bar -- Irreverant [sic] Adventures in Life, Law, and Indigent Defense."

Peshek worked for the Winnebago County Public Defenders' Office from December 1989 until April 2008.  She was fired when her supervisor found out about the blog in April 2008.  A disciplinary action was filed against Pershek on August 25, 2009, alleging violations of several Rules of Professional Conduct in Illinois and describing Peshek's use of clients' first names or jail identification numbers in her blog entries.

The complaint quotes an entry from Peshek's blog from mid-March 2009, the time when she was defending a college student charged with possession: "#127409 (the client's jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because 'he's no snitch.'"

The complaint also includes the following excerpt from the blog: 

"Dennis," the diabetic whose case I mentioned in Wednesday's post, did drop as ordered, after his court appearance Tuesday and before allegedly going to the ER. Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn't being managed well.

Peshek denied the allegations in a September 10, 2009 email to the ABA Journal, and said she was looking for an attorney. 

The complaint alleges that Peshek violated five rules:

1. failing to call upon a client to rectify a fraud that the client perpetrated on the court, in violation of Rule 1.2(g) of the Illinois Rules of Professional Conduct;

2. failing to disclose to a tribunal a material fact known to the lawyer when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, in violation of Rule 3.3(a)(2) of the Illinois Rules of Professional Conduct;

3. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;

4. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

5. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Illinois Supreme Court Rule 770.

Peshek has started a new password protected blog, "A Bird in a Roomful of Cats" (http://cori1047.wordpress.com/). 

Subject Area: 

Jurisdiction: 

CMLP Notes: 

-MW 9/24/2009

 

Priority: 

1-High

The Internet is Keeping Employment Lawyers Busy

The recent economic downturn has been hard on lawyers.  Inhouse legal departments are downsizing. Firms are conducting layoffs and cancelling summer programs.

Subject Area: 

Employers Are Freaking Out About Twitter and Facebook, Study Shows

There has been no shortage of anecdotal evidence suggesting that using social media like Facebook or Twitter can sometimes jeopardize your job.  Back in March, a Philadelphia Eagles employee lost his job when he posted a Facebook status update lamenting free agent Brian Dawkins' signing with the Denver Broncos.  Around the same time, a Twitter user jeopardized a job offer at Cisco by tweeting "Now I have to weigh t

Subject Area: 

Hillstone Restaurant Group v. Pietrylo

Date: 

05/09/2006

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

Brian Pietrylo; Doreen Marino

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District Court of New Jersey

Case Number: 

06-5754 (FSH)

Legal Counsel: 

Fred J. Pisani - Ramp & Pisani

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Description: 

Brian Pietrylo and Doreen Marino filed a lawsuit against their former employer, Hillstone Restaurant Group d/b/a Houston's, following their termination for posting comments critical of the company on a private MySpace page.

According to court documents, Pietrylo "setup a private group on his myspace account." Compl. ¶ 4.  His initial posting explained that the group, called the "Spec-Tator" would allow invitees to "vent about any BS we deal with out [sic] work without any outside eyes spying in on us. . . . Let the shit talking begin." Opinion at p.1. Pietrylo maintains that neither he nor any other "member of the group accessed the private group during work hours." Compl. ¶ 4.

Pietrylo and Marino claim that the managers of Houston's gained access to the page only after they "strong-armed and threatened a member of the private group so that this member was forced into providing them with the member's email address and password." Compl. ¶ 8 . On May 9, 2006, Houston's management terminated his employment and "told him that he was being fired solely for operating and maintaining the private group." Compl. ¶ 10. Pietrylo offered to take down the group but was told "that the decision to fire him would not be reconsidered." Compl. ¶ 11. On May 10, Marino "was also terminated for the same reasons." Compl. ¶ 12.

After their termination, Pietrylo and Marino sued their former employer, arguing that its actions violated the federal Stored Communications Act and Wire Tap Act, as well as the matching New Jersey statutes. Pietrylo and Marino also claimed that management's actions constituted an invasion of privacy and a violation of freedom of speech. Am. Compl. ¶¶ 30-34, 35-36. 

On June 18, 2009, a jury found that Houston's managers had violated the Stored Communications Act and the New Jersey Wire Tapping & Electronic Surveillance Act by intentionally accessing the MySpace page without authorization. The jury found in favor of the defendants on Pietrylo's and Marino's claims for invasion of privacy, finding that the plaintiffs had no reasonable expectation of privacy in the MySpace group.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

firing is threat, lawsuit is response to threat,

AVM 7/2

Jurisdiction: 

The Facebook Snatchers: Could your Employer Hijack your Account?

Let's assume you are employed, use Facebook, have a decent grasp of privacy settings, and want to occassionally express your opinion. Welcome to Facebook Club.

Jurisdiction: 

Subject Area: 

Employee Surveillance: How Big Brother Could Be Your Boss

When it comes to employee surveillance, will your electronic communications be spared from your employer's watchful eye? The United States District Court for the District of New Jersey will soon consider this question in the context of social networks.

Jurisdiction: 

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AnswerThink Consulting Group v. Hackett

Date: 

03/30/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Gregory P. Hackett

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

1:00cv01223

Legal Counsel: 

Ronald Bennett Ravikoff (Zuckerman Spaeder Taylor & Evans LLP); David B. Webster (Webster Roosa Webster)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

In March 2000, AnswerThink, a business and technology consulting firm, fired Gregory P. Hackett for allegedly criticizing the company on a Yahoo! forum and sued him for breach of contract, breach of fiduciary duty and loyalty, and defamation in Florida federal court.

AnswerThink fired and sued Hackett after subpoenaing Yahoo! and learning Hackett's identity during a related lawsuit, AnswerThink Consulting Group v. Doe. In that lawsuit, AnswerThink sued Hackett and several others as John Does for defamation.

Hackett and AnswerThink settled both cases in July 2000.

In a related matter, Hackett sued Yahoo! in California federal court in May 2000 for violating his privacy when it complied with AnswerThink's subpoena. Hackett and Yahoo! settled in August 2000.

Jurisdiction: 

Subject Area: 

Content Type: 

AnswerThink Consulting Group v. Doe

Date: 

02/23/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Doe 1, aka ansr_sucks; John Doe 2, aka bobkaus_daddy; John Doe 3, aka Aquacool_2000; John Does 9-12

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

1:00cv709

Legal Counsel: 

Ronald Bennett Ravikoff (Zuckerman Spaeder Taylor & Evans LLP); David B. Webster (Webster Roosa Webster)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

In February 2000, AnswerThink, a business and technology consulting firm, sued 12 John Does for defamation in Florida federal court. The John Does had posted criticism of the company in a Yahoo! forum dedicated to AnswerThink.

John Doe 3 answered AnswerThink's complaint anonymously in March 2000. Meanwhile, AnswerThink subpoenaed Yahoo! to uncover the identity of Doe 3. Without contacting Doe 3, Yahoo! complied, revealing that Doe 3 was in fact Gregory P. Hackett, an employee of AnswerThink. AnswerThink subsequently fired Hackett and launched a second case against him, this time for breach of contract. See AnswerThink Consulting Group v. Hackett for more information.

Hackett and AnswerThink settled both cases in July 2000.

In a related matter, Hackett sued Yahoo! in California federal court in May 2000 for violating his privacy when it complied with AnswerThink's subpoena. Hackett and Yahoo! settled in August 2000.

Jurisdiction: 

Subject Area: 

Content Type: 

Allegheney Energy v. Swiger

Threat Type: 

Disciplinary Action

Date: 

10/28/2005

Party Receiving Legal Threat: 

Clifton Swiger

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United Stated District Court for the Eastern District of Pennsylvania; United States Court of Appeals for the Third Circuit

Case Number: 

05-cv-05725 (federal); 07-1706 (appeal)

Legal Counsel: 

Gregory A. Beck (Public Citizen Litigation Group)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Allegheney Energy ("AE") fired Clifton Swiger for allegedly posting anonymous criticism of the company and racial epithets on a Yahoo! forum.  AE said the posts were a violation of AE's diversity policy.

In October 2003, AE sued Swiger as a John Doe defendant, but withdrew the lawsuit after it learned Swiger's identity from Yahoo!  (See Allegheney Energy v. Doe for details.)  AE fired Swiger on December 10.

In October 2005, Swiger sued AE and Morgan Lewis & Bockius ("ML&B"), AE's attorneys, for abuse of process, wrongful use of civil proceedings, intrusion of seclusion, and publication of private facts in Pennsylvania federal court.  The defendants moved to dismiss on jurisdictional grounds, arguing that because two of ML&B's partners were U.S. citizens domiciled abroad, Swiger's complaint failed to establish diversity.  The trial court agreed and dismissed the case in February 2007. 

Swiger appealed the decision in March 2007.

Update:

08/25/2008 - The United States Court of Appeals for the Third Circuit affirmed the district court's dismissal for failure to establish diversity jurisdiction. 

 

Content Type: 

Jurisdiction: 

Subject Area: 

Washington Post v. Tunison

Threat Type: 

Disciplinary Action

Date: 

04/17/2008

Party Receiving Legal Threat: 

Michael Tunison

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Description: 

The Washington Post reportedly fired staffer Michael Tunison over profane blog posts on NFL humor blog Kissing Suzy Kolber. Tunison was a regular poster to the blog under the pseudonym "Christmas Ape," and the disciplinary action came soon after he decided to shed his anonymity.

According to Michael David Smith of AOL's "Fan House" sports blog, "Tunison says the Post told him he violated Post standards and discredited the paper by writing a blog post in which he identified himself as a Washington Post writer, linked to the paper three times, included a photo of himself drunk (above) and used profanity."

According to Editor & Publisher, the official Washington Post Stylebook states the policy that the newspaper must avoid any conflicts of interest, or the appearance of conflict of interest. Staffers are expected not to work for anyone except The Post without permission, and to ensure that their private and professional behavior does not bring discredit to their profession or to The Post.

Executive Editor Leonard Downie Jr. confirmed to Editor & Publisher that Tunison no longer worked at the paper and had left his job.  He did not specify if Tunison resigned or was fired.

Jurisdiction: 

Subject Area: 

Content Type: 

CNN v. Pazienza

Threat Type: 

Disciplinary Action

Date: 

02/12/2008

Party Receiving Legal Threat: 

Chez Pazienza

Type of Party: 

Large Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Description: 

In mid-February 2008, CNN fired Chez Pazienza, a senior producer for the "American Morning" program. According to Pazienza, CNN fired him because of his personal blog, Deus Ex Malcontent, and because of his blogging for the Huffington Post.

Although Pazienza's blog often contains strong opinions on politics, the news media, and other topics, he did not discuss his job at CNN or identify himself as a CNN employee. Pazienza says that his superiors cited a CNN rule which prohibits employees from writing for a "non-CNN outlet" without first obtaining permission, and that he was fired with no advance warning or severance pay.

Subject Area: 

Jurisdiction: 

CMLP Notes: 

Waiting to see whether Pazienza will file suit.

 

Content Type: 

Fandino v. Lebanon Truth

Threat Type: 

Other

Date: 

09/28/2007

Party Receiving Legal Threat: 

Lebanon Truth

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Other

Legal Counsel: 

Tom McHill

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

The Lebanon, Oregon school district has been in turmoil for many years. On August 1, 2007, three members of the school board placed the superintendent on administrative leave pending an investigation. In response, an anonymous blogger going by "Lebanon Truth" ("LT") started a blog designed to give the public an alternative perspective on current events and access to information about alleged wrongdoing by school district employees (information that was supposed to be confidential, but that LT was able to confirm through a variety of sources). The blog claimed that the administrative leave action was both illegal and not helpful in resolving the issues facing the district.

LT also posted statements, self-described as opinions, about key players in the dispute, including the president of the local teachers union Kim Fandino, the athletic director, and the football coach, all of whom oppose the current district administration. LT also posted comments about board and audience behavior at school board meetings, rumors about the superintendent's alleged infidelity and why those rumors were not credible, and opinions on ways to resolve the conflict in the community.

Sometime in September 2007, Fandino apparently contacted local law enforcement officials claiming that the statements on the blog constituted criminal harassment and/or cyberbullying. According to the Lebanon Express, officials informed Fandino that the statements did not reach the level of criminal harassment or cyberbullying, but that the statements might violate civil libel laws or school board policy.

On September 28, Fandino filed a complaint with the school district, claiming that the blog was cyberbulling by a district employee (although the identity of the blogger was not known) and asking the district to subpoena Google to reveal the identity of the blogger. After consulting with the district's lawyer, the superintendent declined to take up the matter on behalf of Fandino and advised that she retain her own lawyer.

Fandino then appealed to the five member school board. The item was scheduled for discussion at the November 5, 2007 board meeting. At the meeting, the board chair indicated that the district's lawyer had advised against pursuing legal action against the blogger and requested that the board postpone any further action until the members had a chance to meet with counsel on November 19. One board member moved to allow Fandino to address the board directly and another member seconded the motion, but the chair rejected the motion as out of order and adjourned the meeting.

On November 12, LT published a post on Oregon's anti-SLAPP statute (Or. Rev. Stat. § 31.150), indicating that it should help him/her to strike the complaint and recover attorney's fees in the event of a lawsuit by Fandino or the school district.

Content Type: 

Subject Area: 

CMLP Notes: 

User submitted via threat form

Status checked on 6/4/2008, no new information.  (AAB) 

Jurisdiction: 

Best Western v. Doe

Threat Type: 

Lawsuit

Date: 

06/16/2006

Party Issuing Legal Threat: 

Best Western International, Inc.

Party Receiving Legal Threat: 

John Doe; John Does 1-X; Jane Does 2-X; James Dial; Nidrah Dial; James Furber; Teresa Furber; Loren Unruh; Gayle Unruh

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Arizona

Case Number: 

CV06-1537-PHX-DGC

Legal Counsel: 

Richard T Mullineaux; Robert J Lowe; Daniel J McAuliffe; Gregory B Collins; Todd Feltus; William R Denny; H. James Dial

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Best Western International (BWI) is a non-profit organization whose members operate Best Western hotels around the world. In May 2006, the website "www.freewrites.com" was established as a forum for BWI members and "governors" to discuss matters about BWI administration on a confidential basis. (BWI "governors" act as liasons between the members and the board of directors.) Although designed as a forum for members and governors only, the website was accessible to members of the public who knew of its location. The site was not authorized by BWI.

Proposed changes in BWI's method of operation drew extensive comment and criticism from anonymous posters on the site.

In June 2006, BWI brought a lawsuit in federal court in Arizona against the website administrator (John Doe), as well as BWI members who posted comments on the website ('Jane Does 1-X') and BWI governors who posted comments on the website ('John Does 1-X'). BWI alleged defamation and trademark infringement, as well as breach of contract, breach of implied contract, and breach of implied covenant of good faith and fair dealing. The complaint did not specify any allegedly defamatory statements.

BWI moved for expedited discovery, requesting permission to serve subpoenas on various internet service providers. The subpoenas sought disclosure of the identities of the operator of the forum site and those individuals who had posted messages.

Following Doe v. Cahill, 884 A.2d 451 (Del. 2005), the court denied BWI's motion to expedite discovery, concluding that BWI had not made a sufficient evidentiary showing to overcome the defendants' qualified First Amendment right to engage in anonymous speech. The court stressed that BWI had failed to identify a single false statement made by the anonymous defendants, a single item of confidential information posted on the site by them, or a single instance where BWI's mark was improperly used. Best West. Int'l v. Doe, 06-cv-01537, slip op. at 7 (D. Ariz. July 25, 2006). The court left open the possibility that BWI could meet its required evidentiary showing on a renewed motion.

During the course of litigation, two defendants came forward of their own accord: James Furber, the operator of the website, and James Dial, a BWI member who posted comments on the site.

BWI renewed its motion for expedited discovery seeking disclosure of the identities of the remaining anonymous defendants, and the court granted the motion in October 2006. The court found that BWI had overcome the defendants' qualified First Amendment right to engage in anonymous speech by introducing evidence sufficient to create a genuine issue of fact on its breach of contract claims. Best West. Int'l v. Doe, 06-cv-01537, slip op. at 9-10 (Oct. 25, 2006).

In the same opinion, the court dismissed the trademark and unfair competition claims in BWI's original complaint because there was no allegation that the defendants had used BWI's marks in connection with the sale or advertising of goods or services. See id. at 4-5. The dismissal was without prejudice, and the trademark claims appeared again in BWI's amended complaints.

In November 2006, BWI named Furber and Dial in its first amended complaint. After conducting discovery, BWI filed its second amended complaint in August 2007, naming six defendants: James Dial, Nidrah Dial, James Furber, Teresa Furber, Loren Unruh, and Gayle Unruh. James and Nidrah Dial and Loren Unruh are BWI members.

In May 2007, the court denied James Furber's motion for summary judgment without prejudice, finding it premature. It granted Furber leave to re-file his motion after August 17, 2007.

Update:

8/21/2007 - Best Western filed second amended complaint.

9/10/2007 - James Dial filed answer to second amended complaint.

11/28/2007 - Parties filed joint stipulation to dismiss defendant Theresa Thurber.

5/9/2008 - Defendants James Dial, Nidrah Dial, Loren Unruh, Gayle Unruh, and James Furber moved for summary judgment.

9/5/2008 - The court granted in part and denied in part the defendants motion for summary judgment.

10/20/2008 - Court denied the plaintiffs' motion to dismiss Dial's counterclaim.

12/5/2008 - Court referred the case to a magistrate for a settlement conference. 

3/12/2009 - Court dismissed the case with prejudice after the parties stipulated to the dismissal.

Content Type: 

CMLP Notes: 

6/16/09 updated - CMF

Case still ongoing as of 04/21/2008. {MCS}

Updated 1/29/08 - VAF

Jurisdiction: 

Subject Area: 

Citywide Sewer & Drain v. Carusone

Threat Type: 

Lawsuit

Date: 

01/30/2006

Party Issuing Legal Threat: 

Citywide Sewer & Drain Service Corp.; Salvatore Mangia

Party Receiving Legal Threat: 

Angelo Carusone; Stephen Carusone

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Supreme Court of the State of New York for the County of Nassau

Case Number: 

0018160/2005

Legal Counsel: 

Mirotznik & Associates

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

A New York news station broadcast a report on Citywide Sewer & Drain focusing on customer complaints. Angelo Carusone, who had worked a summer job at Citywide, made comments on his blog under the title, "Citywide Really Is Shittywide." Citywide sued Carusone and his father, who worked at Citywide, for defamation. In September 2006, the New York Supreme Court granted the defendants' motion for summary judgment, holding that the statements on Carusone's blog were statements of opinion protected by the First Amendment.

Jurisdiction: 

Subject Area: 

Content Type: 

The Permanente Medical Group v. Cooper

Date: 

03/15/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

The Permanente Medical Group, Inc.; Kaiser Foundation Health Plan, Inc.

Party Receiving Legal Threat: 

Elisa Cooper

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

California Superior Court, Alameda County

Case Number: 

RG05-203029

Legal Counsel: 

Elisa Cooper (Pro Se)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued

Description: 

Permanente Medical Group, Inc. and Kaiser Foundation Health Plan, Inc. (Kaiser) sued fomer employee Elisa Cooper in California state court in March 2005. The complaint alleged that Cooper breached a confidentiality agreement and invaded the privacy of Kaiser patients by posting on her personal blog documents containing the confidential health information of Kaiser member patients. Kaiser asked the court to enjoin Cooper from pubishing this information and to return any documents in her possession containing this information.

Cooper disputes that she published Kaiser internal documents. According to her blog, Cooper found a Kaiser document called the "Systems Diagram" on a public website long after she was terminated from her employment with Kaiser. The Systems Diagram apparently containd names, IP addresses, computer codes, and screenshots that Cooper considered a breach of HIPAA, a federal law that protects the confidentiality of patient health information. In her account, Cooper posted links to the Systems Diagram on her blog in order to bring the breach to the attention of government agencies, but did not host the materials.

On March 24, 2005, the court issued a preliminary injunction barring Cooper from disseminating patient information. On December 19, 2005, the court granted summary judgment to Kaiser on its invasion of privacy claim. On January 19, 2005, the court entered a permanent injunction barring Cooper from the posting health information of Kaiser's member patients and ordering her to destroy all materials in her possession containing this information.

On her blog, Cooper indicated that she would be appealing the ruling, but we have been unable to determine the status of her appeal.

Content Type: 

CMLP Notes: 

to-do: it appears that Kaiser sent Cooper a cease-and-desist letter (see page 5 of Plaintiff's Memorandum in Support of Summary Judgment) - need to create related database entry for the letter

Threat Source: 

MLRC

Jurisdiction: 

Subject Area: 

Public Employee Blogs: A Means to Ensure Free Speech Protections?

Paul Secunda of the Workplace Prof Blog has a post up observing that the Supreme Court's decision last term in Garcetti v. Ceballos, "completely eviscerated public employee free speech protection." According to Secunda:

Let the public employee free speech carnage begin. One would think that when a police officer that reports to an assistant district attorney that his police chief is harboring a felon, and is reassigned to street patrol for his trouble, that he would be considered to have engaged in speech on a matter of public concern and potentially protected under the First Amendment.

Not under the madness which is Garcetti. Under the formalist framework set up in Garcetti, you either speak as a citizen or employee and nothing in between. You just can't be both even though most people in reality act as both citizens and employees in the workplace.

In a recent case applying the Garcetti framework, the 7th Circuit was faced with a situation where a police officer had made allegations of misconduct by his police chief to an assistant district attorney and in a civil deposition. In the case, Morales v. Jones, 06-1643 (7th Cir. Jul. 17, 2007), the 7th Circuit held that the officer's statements to the assistant district attorney were not protected under the First Amendment because -- and the court seems to have turned the world on its head to conclude this -- the officer was acting within his official duties when he reported the alleged misconduct.

Interestingly, the Morales court also held that because the officer made the same allegations in a deposition, that speech was protected under the First Amendment:

We recognize the oddity of a constitutional ruling in which speech said to one individual may be protected under the First Amendment, while precisely the same speech said to another individual is not protected. Indeed, this is exactly the concern that Justice Stevens voiced in his dissent in Garcetti. . . . Despite Justice Stevens' admonishment, Garcetti established just such a framework, and we are obliged to apply it.

Because the 7th Circuit was unable to determine which speech was the motivation for retaliation against the officer, the court remanded the case for a new trial.

So what does this have to do with citizen media? This could make public employee blogs even more important as a means to ensure that those who report governmental misconduct are afforded full First Amendment protection. Report the misconduct only to another government employee and you run the risk of losing your job. Report the misconduct on your blog and the First Amendment will likely protect you (there are obviously other issues involved here, including state whistleblower statutes).

Let's hope the district court clarifies this important issue on remand.

Subject Area: 

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