January 22, 2015

We are Always Looking for One or Two More Good Clients . . . Even When Business is Great

One of the questions I hear frequently is about whether we are accepting new clients.

While the short answer is “Yes”, here is some additional information which many people find interesting.

Great%20Fit%20Gears%2039896521-001.jpgOur law firm, Sylvester Oppenheim & Linde is committed to client service and quality legal representation for each and every client. That means that we only accept clients who we feel are a good match for our expertise, experience and areas of practice.

I learned a long time ago that we can’t be all things to all clients, but we can be all things to some clients: and those are the ones we accept and serve in an exemplary manner.

The purpose of this blog is to provide helpful information to anyone who reads it. On our website, you will find another example of our “Be of Service” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney”. You will also find a list of our practice areas on that page.

Our clients tell us that they appreciate our honesty, accessibility and guidance. And we appreciate our clients.

Back to the question. The answer is: “Yes, we are always looking for one or two new good clients.” If you have a legal issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

September 12, 2014

LinkedIn Settles Lawsuit Over Sales Department Wages

Last month LinkedIn agreed to pay approximately $6 million in overtime to 359 current employees. The settlement is based on investigation by the U.S. Department of Labor finding that the company violated federal wage laws.

Social%20Media%20Compass%2054107999-001.jpgLinkedIn reached a settlement agreement with the Labor Department to pay $3.3 million in retroactive overtime wages and an additional $2.5 million in damages to workers in California, New York, Illinois, and Nebraska. A representative from the government agency reported that LinkedIn has already mailed payments to employees involved in the settlement.

To its credit, LinkedIn acted very professionally, like a good corporate citizen should. The Labor Department reported the company acted responsibly and cooperated fully by working quickly to resolve the dispute and pay back wages owed.

A representative from LinkedIn stated that the wage and hour violations were due to a systemic failure that did not allow their sales team to properly track their hours. The Labor Department’s investigation revealed that the company failed to record and compensate employees for all hours worked. This is not an uncommon violation of the Fair Labor Standards Act (FLSA). In addition to paying the $6 million settlement for unpaid wages, the company is also responsible for training employees and providing education to ensure that all work performed is “on-the-clock”.

August 14, 2014

Pennsylvania Teacher's Free Speech Lawsuit Won't Go to Trial

As various social media formats and blogs continue to evolve, the definition of free speech may also evolve. That seems to be the case with a former Bucks County, Pennsylvania English teacher who sued her former employer.

Grades%20on%20a%20chalkboard%2033883975-001.jpgThe situation began in 2011, when teacher Natalie Munroe began blowing off steam through her personal blog. She routinely made attacks on her students, whom she did not name, in the blog. Using descriptors like "utterly loathsome," "frightfully dim" and "jerk."

Before long, links to her blog were being floated around parents and students in Central Bucks School District. Despite receiving positive teacher evaluations in 2008, Munroe found herself being put on a disciplinary work plan because of the furor her blog posts caused. Subsequent evaluations were poor, and Munroe was terminated.

Munroe and her attorney claim that the work plan and the poor evaluations were retaliation for the blog posts. Further, they claimed that the posts should have been protected as free speech under the First Amendment.

A recent decision handed down by U.S. District Judge Cynthia Rufe disagrees with the plaintiff's assertions. Judge Rufe used a time-tested standard for determining whether or not the blog posts were protected speech. She noted that Munroe was a public employee who may be held to a different standard when disparaging their employer. Ultimately, Judge Rufe said that the blog posts caused a significant disruption at the school and within the district. This disruption made it difficult for the district to carry on its essential function to educate students. Accordingly, Munroe's blog posts were not protected speech.

Because of the judge's ruling, this case will not be proceeding to trial. Legal scholars warn that anyone who is employed by a public entity should be exceedingly careful about their social media presence. In most instances, it's best not to blog or otherwise post comments about a public employer, coworkers or recipients of the services provided by government entities. Doing so may put the blogger's job in jeopardy, and there is a very good chance that a court will agree that the employer was within their rights.

Continue reading "Pennsylvania Teacher's Free Speech Lawsuit Won't Go to Trial " »

August 1, 2014

Passengers Removed from Southwest Flight Over Tweet

A Southwest Airlines traveler is expressing his displeasure after he was temporarily removed from a flight for tweeting about a gate agent. Duff Watson was traveling between Denver and Minneapolis with his children, aged 6 and 9. Watson was a Southwest Airlines A list traveler, a status that granted him priority seating.

Social%20Media%20Magnified%2044298834-001.jpgWatson prepared to board the plane with his children, only to be told by a gate agent that while his A list status entitled him to early boarding privileges, his children were exempt. As a regular Southwest customer, Watson says the decision mystified him. He had been able to have priority boarding with his children on the airline on several past occasions. When the agent denied him the ability to board in the A group with his children, Watson told her that he was going to tweet about the incident.

"RUDEST AGENT IN DENVER. KIMBERLY S. GATE C39. NOT HAPPY @SWA," was Watson's all caps posting. He boarded the plane with his children, only to hear his name being called over the loudspeaker. They were being asked to leave the plane.

The gate agent said she felt threatened by the use of her name and location in the tweet. She requested that Watson delete the tweet before he and his children would be allowed to board the plane. Watson eventually complied after a supervisor was called in to handle the situation. However, the damage was already done.

The story has been reported in many media outlets with the deleted tweet being read more times than it might have been otherwise. Watson vows never to fly Southwest again. In a statement, the airline notes that a "customer was briefly removed from flight #2347 … to resolve the conversation outside of the aircraft and away from the other Passengers." The statement goes on to say that Watson was not removed from the plane only because of the tweet.

Southwest will not be releasing details about what, if any, disciplinary actions were taken against the gate agent. Vouchers were provided to all three travelers, but it seems unlikely that they will be used.

While no lawsuit has been threatened or filed, time will tell if this incident will lead to another in the evergrowing number of social media lawsuits.

July 2, 2014

Happy 4th of July

Fireworks%2039914849-001.jpgThe team at Sylvester, Oppenheim & Linde and CaliforniaBusinessLitigation.com wish all of our Clients, friends, business associates and blog readers a very safe and extremely fun 4th of July Holiday!

In observance of Independence Day our office will be closed Friday July 4th.

Enjoy your holiday, stay cool and keep your pets indoors!

June 27, 2014

Minnesota Teen Sues School District and Police Over Tweet

An offhand, two word social media post has ignited controversy in Minnesota. Reid Sagehorn, who at the time of the post was a 17 year-old senior at Rogers High School in Rogers, Minnesota, responded to a Twitter post with a flippant comment. Though it took only seconds to post it, the fallout has lasted for months and has now become the subject of a lawsuit.

Social%20Media%2037877338-001.jpgIn January of 2014, Sagehorn was asked by an anonymous Twitter user whether or not he had ever made out with a 28 year-old physical education teacher at Rogers High School. Sagehorn replied, "Actually,yes." Although he insists the comment was made in jest, school district officials took it seriously. Charging that his remark damaged the reputation of the teacher, the principal at Rogers High suspended Sagehorn for five days. Another five days were later tacked on before even more days were added, resulting in a suspension of about seven weeks.

The local police also got involved in the melee. They opened a criminal defamation investigation against Sagehorn. Although no charges were ultimately filed, Sagehorn contends that the felony investigation further harmed his reputation.

While enrolled at Rogers High School, Sagehorn was a member of the National Honor Society and a star athlete. He was in the midst of his senior year when the Twitter controversy began. Overcome with humiliation, Sagehorn withdrew from Rogers and graduated from another local high school. Nonetheless, the fallout from the suspension and the investigation by police continues to haunt him.

That's why Sagehorn recently filed a lawsuit that names various school district and police officials as defendants. The lawsuit seeks damages for the harm done to Sagehorn's reputation. His lawyers claim in the complaint that Sagehorn's posting in no way posed a threat to the teacher. Moreover, he made the post on his own time without using any school resources. Accordingly, his lawyers believe his First Amendment rights were violated by the actions of the school and the police. The outcome of this case may well set a precedent for how schools respond to student use of social media.

April 17, 2014

Facebook Lawsuit Settled Between Sixth Grade Student and School District

Last month, a case was settled between a 6th grader and the Minnewaska School District in Minnesota over a Facebook post from 2012. The American Civil Liberties Union of Minnesota defended Riley Stratton, who was punished for a post that she made on her Facebook page.

Social%20Media%20Compass%2054107999-001.jpgHer school forced her to hand over passwords for her Facebook and email accounts. The ACLU won their case after two years, and now the school district must strengthen privacy protections and pay damages.

Riley stated that she was happy that the case was finally settled, and that her school has to change its rules so that other students don't have to go through what she went through. "It was so embarrassing and hard on me to go through, but I hope that schools all over see what happened and don't punish other students the way I was punished," she said after the settlement.

Stratton was repeatedly punished for a comment that she made on her Facebook page while at home about a faculty member at her school. Her Facebook was then searched by school officials with police present because a conversation about sex with a boy was also investigated on her Facebook. After the ordeal, Riley no longer wanted to attend school.

The school district must now change its policies and pay $70,000 to Riley and the ACLU-MN to cover court costs and support other ACLU-MN efforts in the future. The case is certainly a lesson for school districts in every part of the country as many have changed their policies regarding social media and students.

From the ACLU press release: "We are pleased with the settlement and hope this sends a clear message to other schools that is bad policy to police students' behavior on social media," said Charles Samuelson, who is the Executive Director of the ACLU-MN. "There may be times when it is appropriate for schools to intervene, but only in extreme circumstances when there are true threats or safety risks."

The school district's new policy will work to protect students' privacy while also training staff members to ensure that correct procedure is followed.

February 11, 2014

Is MeetMe.com a Platform for Sexual Predators?

In some cases, social networking websites represent wonderful opportunities for users to connect with old friends and family or to make new acquaintances. However, that isn't always the case with MeetMe.com. This Pennsylvania based service features an app that allows users to locate other users within convenient physical proximity. Essentially, the app uses GPS signals from the users' cell phones to alert them when other users are near.

Online%20Risks%2057598610-001.jpgThe trouble is that MeetMe.com appears to have put few safeguards in place. People as young as 13 may sign up for the service, and it's very easy for older users to represent themselves as much younger people. The result has been a number of sexual assaults occurring between MeetMe.com users who are over the age of 18, and other users who are as young as 12.

San Francisco City Attorney Dennis Herrera recently filed a lawsuit against the networking website. He believes that MeetMe.com's lack of safety regulations provides sexual predators with a convenient means of finding victims. In Herrera's complaint, he notes that anyone can sign up for an account at the website, and that it's remarkably easy to enter any desired birth date. The site has about 40 million registered users. Estimates suggest that teens between 13 and 17 make up about a quarter of that number.

Teens may sign up for the website without obtaining the approval of their parents or legal guardians. This had led to several frightening incidents in California and in other places across the country. Incidents include a 29 year-old man who used MeetMe.com to send explicit messages to teen girls, a 23 year-old man who sexually assaulted a minor he met via the website and a 21 year-old man who represented himself as a 16 year-old in order to have sex with two minors, one just 12 years-old.

MeetMe's representatives have not made substantive comments on the suit, but say they have a dedicated security team that routinely scouts the website for sexual predators. It seems likely that MeetMe will be forced to review some of its policies in light of this litigation.

November 21, 2013

"The Game" Fan Sues BET Over Facebook Fan Page

A dispute between a television show's fan and the network that airs the show has progressed to a lawsuit. Stacey Mattocks became a fan of a show called "The Game" back in 2008. Mattocks liked the show so much that she built a Facebook fan page devoted to the series.

Social%20Media%2037877338-001.jpgUnfortunately, the network soon cancelled the show. Dedicated to the idea that the series deserved a longer life, Mattocks began campaigning to bring the show back on the air. BET eventually decided to pick up the series, and the debut episode gave the network its second highest ratings in its 30 year history.

This portion of the facts makes it seem as if the situation was a win-win for all involved. What is left out is the back and forth wrangling Mattocks and BET have engaged in for about two years over ownership and control of that pivotal Facebook fan page.

As Mattocks alleges, her popular Facebook page helped generate buzz for the series' premier on BET. The network was fully aware of the page, and even offered to pay Mattocks an hourly wage for her time devoted to the site. Later, BET sent her a contract offering her $85,000 in exchange for rights to the Facebook page. Under the contract, Mattocks could have been terminated from administrating the site at any time. She refused to sign.

BET still tried to coax itself into Mattocks' good graces, even flying her to LA for the premier. Then BET started its own Facebook page devoted to The Game in what Mattocks describes in her lawsuit as an attempt to compete. Offers regarding acquiring rights to Mattocks' Facebook page continued to go back and forth, culminating in BET asking Facebook to disable the page. They did so, but only for a short time.

Mattocks says she lost income as a result of the removal of the page. Among other charges in the complaint are breach of contract, copyright infringement and breach of good faith. The outcome of this litigation is bound to break new ground relating to who owns social media rights.

Continue reading ""The Game" Fan Sues BET Over Facebook Fan Page" »

October 30, 2013

Ongoing Cyber Bullying Investigation in Nevada High School

An occurrence of cyber bullying at a Nevada high school is receiving widespread media attention. Early in October, a photograph began surfacing on social media. Reportedly, it was taken in one of the upstairs hallways of Durango High School, which is part of the Clark County School District.

Cyberbullying%2048885149-001.jpgWhat makes the photograph particularly notorious is its subject matter, a female student who has removed her clothing and is standing with the removed items covering her face. Rumors ran rampant in the days following the first postings of the photograph online. Some said the girl was a special education student. Others claimed that she had been coerced into removing her clothing while different witnesses said she had done so willingly.

Little is known about the girl because of Nevada privacy laws. This means that the girl's name and whether or not she is in fact a special education student remain unknown. It seems a welcome piece of anonymity in a case that's puzzling to other high school students who don't understand how the whole situation came about.

What is clear in this situation is the school district's rules against cyber bullying. Clark County School District, and Durango High in particular, have a reputation for taking a harsh view on instances of cyber bullying.

Thus far, the school and district have been relatively silent on the situation. They released a statement shortly after news of the photograph broke, saying that the "matter has our full attention." Afterward, it was reported that a student, Gary Hoffman, was expelled after the incident. Hoffman appears in the photograph, but is not seen taking pictures.

Nonetheless, Hoffman's family soon received a letter saying he had been expelled. The family appealed, noting that the student is merely in the photograph rather than being involved in inducing the girl to remove her clothing or sharing the photo on social media.

The Hoffman family prevailed in the appeal, but Gary won't be taking the district's offer to allow him to re-enroll in Durango. He'll attend a different school while Durango officials seek to punish the perpetrators in the incident.

October 3, 2013

Two Facebook Firings, Two Different Outcomes: Part Two

Last week we reviewed a Butler Medical Transport firing based on a Facebook post which was ruled illegal by an Administrative Law Judge. This week we read about a different outcome for a different Butler employee allegedly fired due to his Facebook post.

Facebook%20up%20and%20down%2047059270-001.jpgIn this case, Michael Rice created a Facebook post stating that he was "broke down" for the second time in two weeks because the company was unwilling to replace malfunctioning equipment. Butler terminated Rice over the post, and was able to produce maintenance records to the Administrative Law Judge that proved that Rice's vehicle had been in working order at the time of the post. In addition, Rice had testified at an earlier unemployment insurance hearing that his post had referred to a private vehicle rather than a Butler vehicle. These facts induced the judge to find that Rice's termination was not illegal. As the post was maliciously untrue and since Rice knew it to be untrue at the time of the posting, the board found in favor of Butler.

The use of social networking sites by employees continues to be a matter of concern for employers. Increasingly, social sites have the power to make or break a company's reputation, making it vital to draft thoughtful (and legal) policies regarding what employees may and may not post regarding their work situation.

The problems Butler Medical Transport encountered with employee Facebook posts might have been avoided had they crafted policies that accurately stipulated what was and was not acceptable online behavior. Butler utilized an informal bulleted list of "work rules" that barred employees "from using social networking sights [sic] which could discredit Butler … or damage its image." An Administrative Law Judge at the National Labor Relations Board felt that the list constituted official company policy although Butler argued otherwise. The judge pointed out that Butler had relied on the bulleted list to terminate two employees in relation to their Facebook posts. Accordingly, this list has the effect of being official company policy.

Butler's failure to successfully argue that their informal list was not company policy is a cautionary tale to other employers. When a workplace rule is written down, communicated to employees and may result in disciplinary action if it is broken, then it is official policy and a judge may treat it as such. Clearly, any company rules, policies or guidelines dealing with social media need to be drafted with care and reviewed by legal counsel before being put into effect. Doing so can save a lot of headaches and clears the way for the employer to focus on generating profits rather than policing employee Facebook posts.

Continue reading "Two Facebook Firings, Two Different Outcomes: Part Two" »

September 25, 2013

Two Facebook Firings, Two Different Outcomes: Part One

The question of whether or not an employee's Facebook posts are protected speech recently came into play with two termination proceedings brought before the National Labor Relations Board. Although both employees made Facebook posts and were subsequently fired as a result of those posts, the presiding Administrative Law Judge reached two very different conclusions.

Facebook%20up%20and%20down%2047059270-001.jpgIn the first instance, emergency medical technician William Norvell was working for Butler Medical Transport. While off duty and using a personal computer in his home, Norvell logged in to his Facebook account only to read a post from a fellow employee that stated she had been terminated. The terminated employee went on to write that she felt the firing stemmed from an incident during which she had complained to a patient about the state of repair of the ambulance in which they were riding. Other Butler employees weighed in on the subject, with Norvell commenting that the former employee might consider "getting a lawyer and taking them to court." Later, Norvell also suggested that the ousted employee could contact the labor board.

Management at Butler obtained hard copies of these Facebook posts, using them ultimately to terminate Norvell. At the time of his firing, Norvell was told his posts were in violation of the company's work rules. This bullet point list included an entry that forbade employees from harming Butler's image in a public manner, such as through social media posts.

The Administrative Law Judge found that the firing was illegal and that Norvell's postings fell under the category of protected concerted activity. Because the posts were not reckless or maliciously false, Butler could not legally terminate Norvell for writing them. Instead, he had been discussing a matter that concerned all Butler employees, an activity protected under the NLRA.

In our next post, read about another Butler employee who received a very different outcome from the judge after his “Facebook firing”.

September 12, 2013

Glendale Unified School District to Monitor Students' Social Networking Activity

Southern California's Glendale Unified School District is taking controversial steps to combat cyber bullying. Specifically, the district has hired a company called Geo Listening to monitor its students' social media postings.

Internet%20Monitoring%2055342227-001.jpgThis monitoring may occur on school computers and on those in the student's home. Although some parents and students feel that this monitoring is invasive and has overtones of a big brother mentality, others are hailing it as a positive step toward fighting cyber bullying and identifying at risk students who don't know where to turn to seek help for emotional and psychological issues.

The program began in 2012 in the aftermath of a school district tragedy. A student had committed suicide by jumping from the roof of one of Glendale's high schools. Administrators saw a need to track early warning signs that students were headed for trouble. This, coupled with the global emphasis on stopping cyber bullying, led the district to contract with Geo Listening to monitor the social network postings of the students in a handful of its schools.

That pilot program is now being extended to all middle and high schools in the district. Although Dr. Richard Sheehan, Glendale District Superintendent, notes that the program is directly related to "student safety," critics remain unsure. Sheehan asserts that Geo Listening will be looking for postings that indicate that "a student is considering harming themselves [or] harming someone else."

On the surface, this appears to be a well intentioned program. The policy grants Geo Listening the opportunity to review postings made by Glendale students to popular social media websites like Facebook, Instagram and Twitter. However, it's important to make the distinction that Geo Listening will only have access to public accounts that are essentially viewable by any users. Students can opt out of participating in the monitoring by privatizing the settings of their social media accounts, which, considering the prevalence of online risks, is probably a good idea anyway. While this monitoring may prove to be an important tool, it should be just one approach among many to combat cyber bullying and provide assistance to at risk youth.

August 29, 2013

Students Challenge California School District's Social Media Policy

A new social media policy in the Lodi Unified School District is being challenged in a lawsuit brought by students within the district. The policy, which is aimed at curbing instances of cyber bullying, is essentially a one page contract that students who participate in sports and other extracurricular activities are being asked to sign as a condition of their participation. However, students cite that the agreement is too vaguely worded to provide a clear template for what is and is not acceptable.

Social%20Media%20Compass%2054107999-001.jpgDistrict officials counter that the intent of the document should be the focus, and that students should not fear for their First Amendment rights.

In the contract at issue, students are asked to agree to a policy that allows them to be benched from their sport, suspended from activities or simply removed from the team or other group in which they are participating. Attorney Thomas Burke, acting on behalf of the students, writes that the policy gives "school officials unfettered discretion if students' speech – even speech taking place off campus and having no connection to school business – is 'inappropriate'". The students and their lawyer expressed concern that students might be unduly punished simply for "liking" a post related to gun rights protected by the Second Amendment or quoting lyrics from a rap song. Students are also worried that postings regarding controversial literature or using a vernacular unfamiliar to adults will result in unwarranted consequences.

School district officials feel that the students' concerns are unfounded. Though they agree that the wording of the agreement could be improved, they believe that students are overlooking the broader intent of the document. Moreover, they argue that the policy will not be used to unreasonably punish students for their behavior on social media. Ralph Womack, School Board President, asserts that participation in an extracurricular activity is a privilege rather than a right and that requiring good behavior on social media is not unlike GPA requirements for student athletes.

For now, the outcome remains uncertain. However, it seems likely that these types of disagreements are likely to become more common as cyber bullying incidents increase.

Continue reading "Students Challenge California School District's Social Media Policy" »

August 2, 2013

Is it Cyberbullying or Free Speech? Judge Rules that NV Student May Proceed with First Amendment Suit

School district policies meant to cut down on bullying and cyberbullying are being put to the test in Nevada. A lawsuit filed in March relates to a student's First Amendment Rights and emphasizes whether or not the district has the right to press charges against a student for statements made off campus via social media.

Cyberbullying%2048885149-001.jpgHigh school senior Juliano Rosario created a series of eight tweets while out dining with family at a local restaurant. Rosario was a basketball player, and since the season was at an end, he seemed to feel that it was time to let off some steam. The eight tweets were laced with obscenities and called out members of Rosario's high school's athletic department.

You will find the tweets listed on page 5 of the court documents HERE.

The school responded by charging Rosario with cyberbullying of a public official. In the charges, school officials relied upon the anti-bullying policy that protects against "verbal abuse, intimidation or cyber-bullying" regardless of where it occurs when the behavior "has a direct impact on the health, welfare, and safety of students or school employees."

The charges led to Rosario's suspension and eventual forced transfer to a different high school. Rosario subsequently graduated, but not before filing a lawsuit claiming that the school violated his First Amendment rights.

Rosario's attorney wonders "How far can the state go?" and also expresses shock at the notion that a teenage student "could be bullying a grown man." The complaint makes use of a state law that makes it illegal to engage in bullying behavior on school campuses or at any school sponsored events. However, the complaint goes on to point out that this state law makes no mention of off campus speech.

Defendants in the case filed a motion to dismiss that U.S. District Judge James C. Mahan subsequently rejected. In his decision, Judge Mahan ruled that Rosario could continue with his lawsuit. The judge's order ruled that the case would have to be tried on the merits. Nonetheless, he made note of circuit court decisions that ruled that schools could mete out discipline for off campus speech that was likely to "cause a substantial disruption" on campus.

July 11, 2013

Teen Sues School District Over Unauthorized Use of Photograph

Teen safety on the Internet is an issue that most parents and teachers must contend with on a daily basis. Drawing the line between what is appropriate online behavior and what is not is admittedly tricky. However, as officials in one Georgia school district are discovering, using a student’s Facebook photo to make a point can have serious repercussions.

OOPS%20%2050794898-001.jpgChelsea Chaney was a high school senior in northern Georgia when the district decided to conduct a seminar about Internet safety for students. During the presentation, students, parents and teachers were shown a cartoon that showed a child aghast at his mother’s past Facebook posts which included references to things like Jello shots and bad boys. The next image featured Chelsea Chaney, wearing a bikini and posing with a cardboard cutout of Snoop Dogg.

Chaney and her parents were horrified by the use of the private photograph which they did not know was being used for the seminar. When the school district refused to conduct an assembly to address the issue, Chaney filed a lawsuit. In the complaint, she alleges that Curtis Cearley, a county technology services director, obtained access to her Facebook profile and utilized the photograph without permission. Moreover, Chaney continues to receive harassment as a result of the use of the photograph. Media coverage has made it impossible to suppress the image, and Chaney asserts that even more than a year later she continues to receive texts and other communications telling her that she deserves this treatment.

Chaney’s attorney charges in the complaint that the seminar painted the student as a “promiscuous abuser of alcohol,” which severely damaged her reputation and caused her undue embarrassment.

Meanwhile, defendants in the case assert that they believed the photograph to essentially be in the public domain and that they did not intend to defame Chaney. This case serves to point out that images, particularly those on the Internet, can be especially powerful. Posting photographs should be done with care, but copying them for other usage requires even greater care in order to avoid serious legal consequences.

June 28, 2013

Dual Use Devices Can Provide Unauthorized Access to Personal Information

Companies are relying on technology more than ever to turn a profit. Often, that means issuing electronic devices to employees. The primary function of these items is work related, but employers recognize the value in allowing employees to sync this technology to personal email accounts.

Smart%20Phone%20with%20Apps%2048915227-002.jpgThis permission allows the employee to be able to check both personal and business emails from the same device, but what happens when the employee is no longer working for the company? Typically, the device is returned to the business, ideally with the employee’s personal information effectively wiped from the memory.

The dangers associated with not completely deleting personal information were highlighted in a recent civil lawsuit. Verizon employee Sandi Lazette received a Blackberry for work related use. She received permission to sync her personal gmail account with the device. Upon deciding to leave Verizon, Lazette attempted to delete her personal email account from the Blackberry. Believing she had succeeded in deleting the account, Lazette returned it to Verizon.

However, Lazette’s attempt to delete her email account had not worked, a fact which was quickly discovered by her former supervisor. In the complaint, Lazette alleged that her former supervisor accessed and read 48,000 of her personal emails over the next year and a half. The emails contained sensitive personal information about Lazette’s health, finances and private family matters.

When Lazette discovered the breach, she sued both Verizon and her supervisor. She claimed invasion of privacy and repeated violations of the Stored Communications Act. The court ultimately found in favor of the plaintiff, denying Verizon’s claims that Lazette’s failure to delete the email account from the Blackberry essentially provided her supervisor with tacit permission to review her emails. Most importantly, the court found that Lazette had never intentially given Verizon or her supervisor access to her emails.

This litigation, and similar cases, highlight how important it is for employees to protect their personal information and for employers to have policies that stipulate a thorough review of all electronic devices and deletion of personal accounts before redistributing devices to other employees.

May 31, 2013

An Employee's "Fire Me" Facebook Taunt Results in Dismissal: NLRB Says "OK"

Workplace complaints are nothing new. However, the method of venting these complaints has been revolutionized by the Internet. Where an employee might once have vented off some work related steam at the local bar with a few coworkers, today they are taking to social media to make their dissatisfaction known.

Social%20Media%2037877338-001.jpgThis transformation from a momentary utterance to a textual conversation that can be printed, forwarded and reviewed in detail had a detrimental effect on an employee at Skinsmart Dermatology. A group of current and former Skinsmart employees was utilizing Facebook to make plans for an upcoming social event. For awhile, the group was focused on the task, but when a former employee cracked a joke about the employer, a current employee launched into a tirade that featured the words, “FIRE ME … Make my day …”

The current employee’s statements evoked little response from other current employees at the time. Nonetheless, one of those workers brought the comments to the attention of a Skinsmart supervisor who concluded that the statements indicated a clear lack of interest in continued employment on the employee’s part. The employee was immediately fired, but soon decided to challenge the decision by filing a complaint with the National Labor Relations Board.

The fired employee felt that her Facebook statements should have been protected under the National Labor Relations Act (NLRA) because they constituted a concerted activity regarding shared employee concerns. The board put the claim to the test, looking at whether or not the employee’s statements were made on her own behalf or in the interests of other employees as well. Moreover, the board also studied if the statements were an attempt to begin an effort to bring group concerns to the employer.

In this instance, the board found in favor of the employer, pointing out that the NLRA does not protect “mere griping” nor does it protect an “individual gripe rather than any shared concerns about working conditions.” Whether or not the employee will seek an alternative tactic to redress the firing remains unknown. For now, the employer’s decision stands as a right and legal workplace dismissal.

The NLRB advice memo can be viewed HERE.

May 23, 2013

Federal Judge Decides in Facebook's Favor in Typosquatting Case: Awards $2.8 Million

As technology evolves and society relies more and more on the Internet for work and play, scam artists seem to dream up increasingly creative ways to derive a profit from it. Most regular Internet users have become familiar with the term “cybersquatting” in recent years. This nefarious online activity involves a company or individual who registers a domain with a name that is confusingly similar to a legitimate website. Administrators use the sham websites to elicit personal information and money from unwitting users. The result is big time profits for the criminals and big time headaches for their victims.

http.www%2051883498-001.jpgRecently, federal courts decided in favor of Facebook against several defendants who had registered domains with confusingly similar names. The websites, examples of which included Dacebook.com and Facebooll.com took advantage of the most frequently made typographical errors users enter when searching for Facebook. In addition to having similar titles, many of the websites also copied the Facebook look and interface to further convince users that they had landed at the legitimate Facebook website.

Facebook executives filed the complaint against the typosquatters in 2011. The judge ordered that the defendants should pay Facebook a combined total of some $2.8 million in damages. Moreover, the infringing domains must be turned over to Facebook, making it possible for the social networking giant to redirect users with poor typing skills to the Internet destination they actually wanted to reach. The defendants in the case are also prevented from continuing to register domain names that are confusingly similar to Facebook’s. A lawyer working on behalf of Facebook notes that “we are pleased with the court’s recommendation.” In addition, he foresees a continued vigorous defense in support of Facebook’s intellectual property.

Facebook is not the first company to rely on the 1999 Anticybersquatting Act. Other recognizable companies like Microsoft have used the act in the past to protect their online presence and reputation. As commerce continues to rely on the Internet in an ever increasing amount, it seems clear that this law will be put to the test on many occasions in the future.

May 17, 2013

Retaliation Lawsuit Filed After Social Media Postings

Sometimes, social media, employers and workers just shouldn’t mix. At least, that’s the logical conclusion in the case of a lawsuit filed by former employees of Coyote Ugly Saloon.

The trouble began when several current and former employees of the corporation filed a lawsuit against Coyote Ugly. The complaint alleged that employees had not received compensation for hours they were forced to work off the clock. Moreover, the suit pursued damages for illegal tip practices. Plaintiffs alleged that bar security workers were allowed to share in the tip pool although the practice should have been prohibited.

Most corporations accept the occasional lawsuit as part of the cost of doing business. Under the advice of attorneys, most employers refrain from commenting publicly with regard to ongoing legal matters. However, this practice seems to be changing as social media applications become increasingly prevalent. The problems associated with this phenomenon are highlighted by this case.

Coyote Ugly CEO Liliana Lovell, who writes a regular blog on the company website, made comments on her blog that were related to the recently filed lawsuit. In the post, Lovell noted that the plaintiff, Misty Blu Stewart, had been terminated for theft. The post also went on to refer to Stewart in a derogatory fashion, although Stewart’s name never actually appeared in the post.

Concurrently, another plaintiff in the case, Sarah Stone, discovered a Facebook post by a company manager that referred to a desire to kill a bartender who was suing him. The post was made while the manager was being served by Sarah Stone, whom he knew was involved in the suit.

As a result of both online postings, Stewart and Stone filed a further lawsuit, this time claiming retaliation on the part of their former employer. The court recently dismissed a motion by the defendants that would have put an end to the suit, meaning that a judge is likely to hear the case in the coming months. In the meantime, it seems prudent for employers to refrain from commenting in social media on legal matters in even the vaguest terms.

May 9, 2013

High School Teacher Files an Appeal in Case of Social Media Related Resignation

A legal quagmire in Georgia over a teacher, her Facebook profile and student access to that profile is deepening. The tale starts at the beginning of the 2009 school year when Ashley Payne, a high school English teacher, befriended a student on Facebook. It’s unclear which party sent the friend request, but the resultant connection opened Payne’s profile to the student. In it, Payne made use of the term “bitch” in a playful manner and also posted a picture of herself with a glass of wine in one hand and a beer in the other.

Resignation%20Cloud%2048748828-001.jpgUpon discovering this content, the student’s parent anonymously forwarded an email to Superintendent Dr. Ron Saunders who forwarded the message to Apalachee High principal David McGee. McGee, along with the vice principal, held a meeting with Payne in which the teacher admitted her use of Facebook and the use of a photograph depicting alcohol usage. However, Payne alleged that she was unsure whether or not any of her students were among her Facebook friends. Principal McGee then showed Payne the email complaint and notified her that the concerns of the parent were being passed along to the school board. Allegedly, McGee expressed doubts about the board finding in Payne’s favor.

Payne says she felt that she was being given two options: resign or be suspended. She sent in a resignation letter, then reconsidered the decision. With the help of an attorney, Payne addressed a letter to the school board in which she advocated for getting her job back. When that failed to elicit a response, her attorney filed a writ of mandamus alleging that the Georgia Fair Dismissal Act entitled Payne to a hearing and appropriate compensation.

In response, the school district filed a motion for summary judgment. The court ruled in favor of the school district, stating that Payne’s resignation meant she was disqualified for protection under the act. Still, Payne isn’t ready to give up the fight. A recently filed appeal means that her case will get a second look under the jurisdiction of a higher court.

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April 19, 2013

Nevada Strengthens Cyberbullying Laws

Bullying has become a hot media topic, but it’s a subject that’s gone beyond the schoolyard bully demanding lunch money. Today, cyberbullying is being put in the spotlight, and the prevalence of this phenomenon is leading to legislation.

Cyberbullying%2048885149-001.jpgIn Nevada, public outcry over videotaped bullying that gets posted to the Internet has caused politicians to pass a new law. Essentially, the legislation prevents the transmission and distribution of violent images involving a child. Minors who knowingly and willfully distribute images of a violent offense against another minor may find themselves facing a juvenile court after the first offense. The court may impose supervision for the minor, though it is not empowered to detain them.

A second offense carries stiffer penalties. A juvenile detention center would be the minor offender’s next stop. Under the law, the detention would be similar to that imposed upon an adult who had committed a misdemeanor.

Parents of children who have been the victims of cyberbullying feel that the new law comes not a moment too soon. Cherie Anderson, a mother whose 17 year-old daughter was herself the victim of a bullying attack, expressed her hope in the days before passage of the bill that it would pass in its entirety without major amendments.

In response to the bullying, Anderson has already begun homeschooling her daughter and has also enacted two house rules that prohibit cell phones and the use of social media. Anderson also said that she finds it “appalling that parents give” children the tools necessary to perpetrate a cyberbullying attack.

Though Nevada’s new law (HERE) is certainly among the first such legislation in the country, it is unlikely to be the last. It seems reasonable to assume that other states and municipalities will soon be considering passage of similar laws.

December 6, 2012

Twitter or Tinker? Illinois Students Suspended Over Social Media Comments

The uneasy intersection of social media and the First Amendment took another twisted turn in late October with the suspension of 10 high school students over their use of Twitter. The students in question attend Granite City High School, part of Community Unit School District 9 in Southwestern Illinois.

Social%20Media%2037877338-001.jpgIt all started with a tweet that included a student's opinion of a female teacher. The tweet referred to the teacher as a MILF, a colloquial acronym used to describe a mature, attractive woman with high sex appeal. Principal Jim Greenwald conducted an inquiry and found out that two students chose to re-tweet the original message. Another student deemed it worthy of a favorite mention.

The Twitter interaction between those four students resulted in their suspension, but that did not stop the investigation. School officials later found more tweets posted by the student body, including one by a young woman who in jest tweeted musings about blowing up the school in order to defer classes. That was suspension number five, which was extended to three other students who participated in re-tweeting.

Once news of the eight suspensions traveled through social networks, the situation escalated in Granite City High. Students who felt that their freedom to tweet had been threatened exercised their freedom of speech by posting fliers showing their disapproval. Two of those students were called into Principal Greenwald's office and were summarily suspended.

Though no legal action has been taken on the Granite City High matter, the suspensions evoke comparisons to Tinker v. Des Moines, the landmark 1969 Supreme Court case made memorable by the late Justice Abe Fortas' opinion that students are not stripped of their First Amendment rights when they step into school grounds.

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October 9, 2012

Federal Judge Says “NO” to Home Depot’s Request for Former Employee’s Social Media Activity

After 19 years with Home Depot, Danielle Mailhoit was fired. She was a manager of a Burbank, CA Home Depot at the time of her termination in 2010. In May 2011, Mailhoit filed a lawsuit claiming she was fired unlawfully because of her gender and disability (vertigo).

Vertigo%20stairs%2035606055-001.jpgThe lawsuit also claims her employer did not provide reasonable accommodations for her disability as required by law.

One of Home Depot’s actions in the litigation was to ask the court to force Mailhoit to grant them total access to all of her social media accounts and activity back to October 2005, specifically:

Any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social-networking sites from October 2005 (the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state...

Magistrate Judge Suzanne Segal of the United States District Court for the Central District of California ruled last month that Home Depot’s request was "impermissibly overbroad". Segal ruled that Home Depot has not proved "that every picture of plaintiff taken over a seven-year period and posted on her profile by her or tagged to her profile by other people would be considered relevant."

Judge Segal did grant Home Depot access to communication(s) between Mailhoit and current/former Home Depot employees because those would be pertinent to the lawsuit.

May 11, 2012

Student's False Arrest Leads to Lawsuit

The daughter of Debashish Biswas, the Vice-Consul in the Consulate General of India in New York, has filed a $1.5 million suit against the city of New York. Krittika Biswas alleges that she was taken from her high school classroom in handcuffs and imprisoned after she was falsely accused of sending sexually threatening emails to a teacher.

arrested%20student.jpgEven after another student from John Browne High School in Queens admitted to the crime and all charges against Biswas were dropped, the honor student was suspended from school and forced to attend what the suit calls the equivalent of a reform school.

Biswas’ lawsuit was filed in the US District Court Southern District of New York. It alleges that the plaintiffs, including the city of New York, the Department of Education, specific officials from the Department of Education, the principal of John Browne High School, the teacher who received the emails and Raymond Kelly, police commissioner of the city of New York, violated 26 state and federal laws during the incident.

According to court documents, Biswas was arrested, handcuffed, processed and imprisoned for more than 24 hours. The suit alleges that she was arrested and mistreated in spite of the fact that there was no evidence against her as a result of ethnic bias. Court papers also state that Biswas was denied the opportunity to consult her parents or to meet with Indian diplomats while she was in custody. When Biswas refused to confess, a police officer attempted to intimidate her by telling her she would be jailed with inmates who were HIV-positive.

Included in the documents are allegations that Biswas suffered from so much mental distress as a result of the incident that she left the United States and returned to India. She is currently a college student in that country, and is majoring in science and engineering.

Attorneys for the city of New York declined to comment, stating that they had not had a chance to review the suit.

May 4, 2012

Teenager Sues Classmates for Cyberbullying

Alex Boston, a 14-year-old girl from Georgia, has filed suit against two other teenagers and their parents for libel after the pair impersonated her online, depicting her as a sexually active, marijuana-smoking racist.

stop%20cyberbullying.jpgCourt documents allege that the two were classmates of Boston who opened a Facebook account containing racist video. Additionally, the two posted messages on the walls of Boston's friends in which she appeared to admit to abusing drugs and having sex. All these characterizations were untrue and the defendants knew it, according to Boston's attorney, Natalie Woodward.

Boston first came across the Facebook page last year. She says that the account, which appeared to belong to her and to reflect her views, was very upsetting. The fake page was so well executed that Boston's other classmates believed that they represented the real Boston, and she was subjected to “hatred, contempt and ridicule" as a result. In her suit, she accuses the defendants of intentional infliction of emotional distress, as well as defamation.

Boston's parents initially went to school officials, who were unable to help because Georgia law does not allow schools to punish students who bully other students off-campus. Internet bullying initiated outside of school does not meet the Georgia requirements for on-campus bullying.

Local police were also unable to help because Georgia had no applicable law against cyberbullying. They suggested the Bostons ask Facebook to close the account and remove the page. When Facebook failed to take action, the Bostons brought suit against the teenagers behind the hurtful account. Ironically, once news of the lawsuit was featured on CNN, Facebook removed the page.

According to Woodward, the attack was unexpected. The defendants reportedly told adults from school that they simply didn't like Boston.

Federal courts have historically toed a fine line in such cases. In a case from 2005, a federal judge ruled that a school in Pennsylvania erred when they suspended a student for creating a MySpace page that parodied the school’s principal but didn't disrupt school. However, a similar suspension was upheld by a federal judge in a West Virginia case involving a student who implied through a website that another student had an STD.

March 21, 2012

School Punishes Off-Campus Speech; Students Sue

A Missouri school district is being sued after a district employee punished two students for their off-campus speech. Lee's Summit R-7 School District is accused of violating the First and Fourteenth Amendment rights of two honor roll students. The suit was filed in federal court by Brian and Linda Wilson, the parents of the students.

Blogging%20Blackboard.jpgAccording to court documents, the district suspended the students, who are twin boys, for six months for creating a nonviolent blog. The court is being asked to dismiss the suspensions and expunge them from the boys' school records.

The blog, northpress.tk, was a satirical site that the boys created and maintained on their own computer away from school outside of school hours. According to the suit, the students went to great lengths to prevent the site from being accessed by the general population of their high school, even using a Dutch domain name to make it difficult to find through an Internet search.
The school became involved when administrators learned of the site on the same day that a reader, unbeknownst to the students, posted a racial slur in the comments section of the blog.

Although another student promptly removed the slur, the incident appears to have spurred the district's superintendent, David McGehee, to suspend the boys on the grounds that they were involved with the blog.

In their suit, the parents of the students state that the boys were offered the chance to attend an alternative school for at-risk students. However, the alternative school does not have programs capable of meeting the academic needs of honor students, according to the Wilsons. In addition, the alternative school does not have its own band and will not allow the boys to continue to maintain the leadership roles they have earned in their regular high school's band.

According to court papers, the parents fear the suspension will interfere with the students' chances of being accepted by colleges. In addition, the suit maintains that allowing the school district to punish legal speech that took place away from school will have far-reaching negative consequences. If the district's actions go unchecked, the suit alleges, “The result would be an impermissible chilling effect on speech.”

March 14, 2012

12-Year-Old Sues School for Facebook Privacy Violations

A Minnesota mother has filed suit against the Minnewaska School District on behalf of her 12-year-old daughter. The suit, which has the support of the American Civil Liberties Union, is expected to have an impact that reaches far beyond the grounds of Minnewaska Area Middle School. At issue is the length schools and employers can go to in order to control private speech.

facebook%20privacy%20lock.jpgThe girl at the center of the case, known only as R.S., alleges that school officials punished her multiple times for her private Facebook activity and then staged a mock police detainment in order to coerce her into revealing her Facebook and email passwords. The suit claims that school employees used the information to read the girl’s private emails and posts.

R.S. believed she was being targeted by a school monitor, so she posted a message on her Facebook wall saying that she hated the monitor for being mean to her. Facebook does not allow public viewing of the walls of minors, so there was no way for the monitor or school officials to see the message. Someone showed a screenshot of the girl’s wall to school officials, however, and R.S. was punished and forced to apologize to the monitor.

Afterwards, R.S. posted a message expressing her anger at the “friend” who had told on her. She was suspended from school for this post. Later, the guardian of another student complained to school officials that R.S. had discussed sex in a private Facebook conversation with another child. Neither the posts nor the conversation was conducted on school grounds or using school equipment.

After the last incident, R.S. claims she was detained in a small room in the presence of a police officer and two school employees and told she had to reveal her Facebook login information and her email password. The suit alleges that R.S. sobbed with fear and humiliation as the officer and school employees read her private conversations and emails and berated her for their contents.

The suit alleges that the district violated the student’s First and Fourth Amendment rights. According to court papers, the girl’s mother was not informed of the interrogation and never gave anyone permission to look at her daughter’s private communications.

The school district contends that its actions were reasonable and legal. According to a district spokesperson, “The district is confident that once all facts come to light, the district's conduct will be found to be reasonable and appropriate.”

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February 16, 2012

Judge Rules Deleting Facebook Photos is Tampering with Evidence

“Spoliation of evidence" is a legal phrase describing the deliberate destruction of evidence that would impact a trial. Although spoliation of evidence is a rare finding in civil cases, it was the finding of a state district judge in Virginia, who imposed fines totaling $522,000 on attorney Matthew Murray. Murray’s client was also fined $180,000 for acting on his lawyer’s advice to break the law. The case, Lester v. Allied Concrete Co., was a wrongful death suit filed on behalf of a bereaved husband.

Spoliation%20of%20Evidence.jpgThe court found that Murray grew concerned that pictures Lester had posted on his Facebook account contradicted the pair’s claims in their case. The case was ultimately decided in Lester’s favor and $10 million in damages was awarded to him by a jury.

The deleted photographs came to light when an attorney for the defense managed to view Lester’s Facebook page through a mutual friend’s account. The page contained pictures that presented Lester engaged in various activities. Murray became concerned that some of these photographs, including one of Lester holding a beer and wearing a T-shirt proclaiming his admiration for “hot moms,” might cast doubt on Lester’s claim to be distraught over the loss of his wife. He advised Lester to remove the pictures.

Allied Concrete’s attorney was able to establish in court that Lester deleted the pictures, and the defense was furnished copies of them before the trial. After the trial, the judge ruled that all emails that had been exchanged between Murray and Lester were not protected under attorney-client privilege laws and demanded copies of them.

As a result of the evidence contained in the photographs, the judge decided that Lester was dishonest about his depression and the treatment he was receiving for it. Based on the emails exchanged between Lester and Murray, Lester was also found to have lied to the court about the existence of his Facebook account, and then lied about his attempts to delete it and its contents. In addition, the judge determined that Murray’s actions amounted to spoliation of evidence, and further found that he had attempted to cover his tracks by submitting incomplete evidence and blaming the act on a paralegal. After the ruling, Murray resigned from his law firm.

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January 4, 2012

Who Owns Your Twitter Account?

Although Twitter may have started out as a social networking tool, more and more businesses are using it as a marketing tool. A lot of people have Twitter accounts that they think of as a tool to promote their own careers. Sometimes, in the process of promoting their careers, they may do a little cross-promotion for their employer. After all, if it’s good for the company, it’s good for the employee, usually. “A rising tide lifts all boats,” to quote John F. Kennedy. But if you use your Twitter account to promote your company as well as yourself, then who owns the account?

Twitter%20Follow%20me.jpgA current legal case filed with the US District Court in the Northern District of California involving a private individual who used his Twitter account to boost his employer seeks to answer this question. PhoneDog, a mobile products website, is suing its former employee, Noah Kravitz, for $340,000.

PhoneDog says that Kravitz was “given use of” a Twitter account while he worked there, and that he continued to use the account after he left the firm, constituting theft of trade secrets and damage to the PhoneDog’s “business, goodwill, and reputation.”

PhoneDog says that the Twitter account @PhoneDog_Noah was used by Kravitz to “disseminate information and promote PhoneDog's services on behalf of PhoneDog." Kravitz counters that he created the account, linked it to his email address and used it to tweet the things that mattered to him personally, including tweets related to his career and PhoneDog, as well as sports and food, among other subjects.

In fact, says Kravitz, the account wouldn’t work as well if it didn’t combine both personal and career elements. "It's this melding of personal and professional which is why I've gained a modest following," he said in an interview, "Because it's not just the dry headline and link to something."

PhoneDog claims in the lawsuit that it asked Kravitz to drop the account when he left the company. Instead, it claims, he kept the account but changed the handle. Kravitz tells a different story. He says PhoneDog didn’t ask any such thing. Instead, he says, it gave him a green light to keep using the account and even to mention the company. "At no point until July of this year, a good 8 months after we parted ways, did they ask for the twitter account or claim in was their property."

In the lawsuit, PhoneDog claims that Kravitz’ post-employment use of the account is an attempt “…to discredit PhoneDog and destroy the confidence that PhoneDog's users have in PhoneDog."

According to Henry J. Cittone, an intellectual property attorney, the crucial question is going to be whether Kravitz was paid to create the account and to send Tweets. “They said they hired him to create this feed for them. That is the way the company could dislodge a Twitter feed from its owner."

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October 31, 2011

Does Social Media Help or Hinder Student Athletes?

Reports of schools violating NCAA regulations by providing incentives to student athletes are nothing new. Numerous universities have been sanctioned for such violations in recent years, including the University of Miami, Ohio State University and the University of Southern California, among others. The most recent scandal, involving the University of North Carolina, offers a new twist on an old theme, however. The UNC scandal is notable because it was social media that first alerted NCAA officials that something was amiss. Tweets made by a student player on Twitter revealed that he was receiving unsanctioned benefits from the school.

Social%20Media%20%26%20Student%20Athletes.jpg In the NCAA’s Notice of Allegations, UNC was cited for failing to properly monitor the use of social media by student athletes. In response to the NCAA’s unprecedented actions in this case, universities across the nation have taken steps to limit, and in some cases, entirely prevent, athletes’ use of social media. These actions put schools in the precarious position of trying to restrict the First Amendment rights of their student athletes, most of whom are adults.

Some schools have stopped short of forbidding student athletes from using social media altogether, making mandatory monitoring a condition of team membership. Others have ventured even further into shaky legal ground by enforcing a total prohibition on social media use for all student athletes. Because the Supreme Court has made it clear that university students give up none of their First Amendment rights when they enroll, curtailing these rights leaves a university vulnerable to legal action from student athletes. It could be argued that banning student athletes from using social media rises to the level of a prior restraint on speech.

In the event of a legal challenge, universities will be forced to defend themselves in court and may end up paying damages. A more proactive approach might be to put an end to inappropriate incentives for student athletes, rather than taking questionable steps to prevent the athletes from telling anyone they are receiving them.

August 4, 2011

Federal Appeals Court Rules Against High School Cyberbully

A federal appeals court has refused to order the reinstatement of a student suspended for cyber bullying. Kara Kowalski was a senior at Musselman High School in West Virginia when she launched her vicious attack against a classmate. Kara’s weapon of destruction was a personalized MySpace page entitled “S.A.S.H.”

cyber%20bully.jpgAt subsequent court hearings, Kara stated that S.A.S.H was an acronym for “Students Against Sluts Herpes.” She went on to allege that another student started a false rumor that the title really represented “Students Against Shay’s Herpes.”

Nonetheless, numerous youth immediately posted images of Shay on S.A.S.H. All of the intentionally altered pictures suggested that Shay had a venereal disease. Shay suffered severe harassment and ostracism as a direct and proximate cause thereof.

When Shay’s parents complained to authorities about this offensive content, school administrator deemed that S.A.S.H. was indeed a “hate website.” Official school policy prohibits cyber bullying. Accordingly, Kara received a five-day disciplinary suspension.

The ensuing litigation posited that this punishment violated Kara’s constitutional rights to due process and free speech.

The court rejected those claims, however. The sole purpose of S.A.S.H. as a forum for defamatory publication and derogatory depictions seems to have been the underlying rationale.

Thus, the Fourth Circuit jurists ruled that school officials did not usurp their legal authority by suspending Kara. Judge Paul V. Neimeyer penned the majority view. In it, he opined that school officials acted appropriately by taking Kara’s callous disregard for a fellow student very seriously.

In addition to being suspended, Kara was prohibited from crowning her successor to the “Queen of Charm” throne. She also lost a cheerleading post.

Ironically, Kara also claimed to have suffered severe depression and social isolation as collateral consequences. The court was apathetic to those assertions, however.

This is a great example of school authorities doing the right thing for the right reasons.

The last paragraph of the Court’s decision says it best: “Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem."

The entire decision may be viewed HERE.

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November 9, 2009

ACLU Files Lawsuit Over Slumber Party Photos

The American Civil Liberties Union of Indiana has filed a lawsuit on behalf of two students who were suspended from athletic activities after their principal found sexually suggestive photos from a slumber party. In the lawsuit, the ACLU claims that Smith Green Community School Corporation and the Churubusco High School Principal, Mr. Austin Couch violated the students' rights by suspending them for out of school activities. The photos were posted to the student's MySpace pages.

pajama_party.jpgAccording to the lawsuit documentation, the pictures were taken during a slumber party that occurred during the summer months. The students took photos of themselves kissing and licking a novelty lollipop and pictures of themselves wearing lingerie with dollar bills stuck within the clothing. There was no identification with the photos suggesting that the students attended the high school. The lawsuit states that the students were being humorous and that the actions were "irrelevant" to school functions.

After someone accessed, copied and supplied the photos to the principal, the principal suspended the students from all extracurricular activities for the school year. After parents spoke to the principal, the principal agreed to reduce their suspensions if the students attended several counseling sessions and apologized to the athletic board.

Although the school and principal stated they are unable to comment, they did release a statement stating that the pictures "caused a disruption within our athletic teams at the beginning of this year's sessions." The school states the students did not meet extracurricular expectations.

While the parents appealed the ruling, the students attended the counseling sessions so they could participate in fall activities. They also apologized for their behavior in front of the all male athletic board. The ACLU states that this was humiliating and embarrassing.

The ACLU states that this is only one case, out of many similar cases playing out across the country. The organization claims that private moments like these should stay there and out of school administrator's hands.

The school uses a code of conduct that states that the principal "may exclude any student athlete from representing Churubusco High School if his/her conduct in or out of school reflects discredit upon Churubusco High School or the IHSAA or creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School."

The ACLU is hoping to classify the case as a class action suit, since many parents could be part of it. The lawsuit asks for the district to no longer be allowed to punish students for such behaviors and asks that the incident be expunged from the two student's records.

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