“Crass and Uncouth” MySpace Posting not Grounds for Expulsion

Once again, the powers that be are all in a tizzy because of content on a social network.  Joining the ranks of city officials, private employers, and high school administrators in sanctioning speech online is the dean of a nursing school.  As in the Houston’s Restaurant case, however, her non-proportional response has been corrected by a court of law.

In this case, the “perpetrator” of the heinous crime of voicing a controversial opinion was University of Louisville nursing student Nina Yoder.  As a requirement of her childbearing course, she shadowed a patient/mother through the birthing process.  She then committed her almost-fatal mistake – she wrote about the experience on her MySpace page.  In a post the court described as “vulgar,” “distasteful,” and “objectively offensive,” Yoder rather frankly expressed her views about clinicals (“a waste of my time”), pregnant women (“beautiful[?]  No.  Hell – no.”), babies (“Creep[s] . . . . [D]emons sent to us from hell to torture us for the whole eternity”), and having kids (“like being ripped apart by rabid monkeys”).  She discussed her patient’s difficult eight-hour labor and, in what the court describes as “a departing message that is positive – life-affirming, even – if perversely so,” she ended the post by calling women “FREAKING STUPID” since the experience made her “want another baby!!”  Although the MySpace page has since been made private, Judge Simpson, in his order, quoted the post in its entirety for your reading pleasure.

After learning of the blog post, the Associate Dean of the School of Nursing (SON) called Yoder into her office, had her frisked (apparently, Yoder’s blog also mentioned her support of Second Amendment rights), and told her she was being dismissed from the school because her post violated the nursing Honor Code and childbearing course Confidentiality Agreement.  The official letter of dismissal, however, mentioned only the Honor Code, not the Confidentiality Agreement.  Yoder’s petition for review of her dismissal was denied, in a process that allowed her no opportunity to participate beyond the filing of the initial petition.

Yoder responded by filing suit, claiming that the school violated her First and Fourteenth Amendment rights to free speech and due process.  She sought money damages and an injunction allowing her to return to classes.  The SON retorted that this was not a free speech issue – Yoder simply violated her obligations as a nursing student by acting in an unprofessional manner and revealing confidential “identifying information” about her patient.

In his opinion granting Yoder’s motion to dismiss, Judge Simpson declined to resolve the case on constitutional grounds, deciding instead to treat it simply as a matter of contract interpretation.  Nevertheless, he rejected both of the SON’s main arguments, stating that the information about the patient revealed in the blog post (“the number of her children; the date that she was in labor; her behaviors; the treatment that she underwent (an epidural); her reaction to labor (vomiting); and the reactions of her family”) does not identify her, and that the post was not “unprofessional” (in contravention of the Honor Code) but rather “non-professional” (thus falling “outside the purview of the Honor Code”).  He also notes that the fact that the blog post was “technically accessible to the public does not fundamentally change the nature of the writing.” 

Worryingly, the judge discussed the fact that none of the terms “confidentiality,” “identifying information,” or “professionalism” “[are] defined anywhere within the SON’s rules and regulations,” suggesting that he might have been comfortable enforcing broad conceptions of these terms (and thus upholding Yoder’s expulsion) if they had only been defined by the SON.  This may be partly an artifact of his decision to limit his inquiry to the interpretation of contractual terms - had the terms been broadly and explicitly defined, he might have been required to address Yoder’s constitutional arguments.  Given the broad protections of the First Amendment (and its application to public universities), his ruling would probably remain unchanged, reinstating Yoder as a student at the SON.

Eric Goldman at the Technology & Marketing Law Blog takes issue with the court’s assertion that the post contained no personally identifying information about the patient, since “any savvy investigator could combine the blog post with other data sources and quickly identify the mom with a high degree of certainty, even if the investigator would rely only on easily obtainable published information.”  Although he is almost certainly correct in his analysis of how easy it would be for a determined individual to identify a person based on very scant information, I would hesitate to impose liability for breach of confidentiality on such limited informational exposure.  It would be effectively impossible for any health care professional to publicly share his professional experiences if the simple disclosure that his patient had a long and painful delivery that required an epidural, despite it being her third child, was deemed to be a breach of confidentiality.  As even major medical journals such as the BMJ and The Lancet [PDF] acknowledge, “complete [patient] anonymity cannot be guaranteed.”  This is a result of the reality we live in, with so much information, much of it “private,” available to anyone with a modicum of technological expertise and an Internet connection.  Despite the importance of patient privacy, trivial revelations such as those made by Yoder should not be considered breaches of confidentiality.  Such a characterization would have a dramatic chilling effect on bloggers who might otherwise contribute valuable insights in a less “crass and uncouth” manner than Yoder did.

(Lee Baker is a rising second-year law student at Harvard Law School and a CMLP legal intern.  He is very glad he will never experience the pain of childbirth.)


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