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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

‘Like’-ly Litigation: Social-media use sends Minnesota students, employers to court

0117-socialmediaRecent Minnesota cases demonstrate the power of social media but also its legal pitfalls. The legal issues stemming from social-media use cut across practice areas and implicate core principles ranging from personal jurisdiction to the power of courts to regulate and restrain speech.  

A few keystrokes on Facebook or Twitter can have immediate, far-reaching effect. They also can land an employee in the boss’s office, a student in the principal’s office, and these days pretty much anybody in a lawyer’s office.

Recent Minnesota cases demonstrate the power of social media but also its legal pitfalls. Defamation and privacy are obvious concerns. Employment and education are among the practice areas most affected.

However, the legal issues stemming from social-media use—Facebook comments and Twitter tweets in particular—cut across practice areas. They implicate core principles ranging from personal jurisdiction to the power of courts to regulate and restrain speech, while recent litigation highlights the dangers of attempting satire on social media.

Increasingly the potential of litigation is no laughing matter. In an era when a Facebook Live video from a suburban Minnesota street can become international news within a few hours, legal disputes can erupt as quickly as Facebook was developed.

Friends, Facebook, and free speech

Harvard University sophomore Mark Zuckerberg invented Facebook in a matter of days. “Everyone’s been talking a lot about a universal face book within Harvard,” he told the Harvard Crimson in a Feb. 9, 2004 article. “I think it’s kind of silly that it would take the University a couple of years to get around to it. I can do it better than they can, and I can do it in a week.”1

With that, “friending” became a verb—first at Harvard, then other college campuses, and by 2006 off campuses. Still, Facebook’s roots are in the university setting. The website’s first mention in a published court opinion came in a criminal case involving illegal access of a student’s email.2

Minnesota’s leading cases on the intersection of Facebook and free speech also originated on campuses—where students-turned-litigants learned real-world lessons about the limits of online satire.

Tatro v. University of Minnesota3 involved a mortuary sciences student who claimed her free-speech rights were violated by the university disciplining her for making what she characterized as “satirical” Facebook posts about a cadaver she had named “Bernie.”

The Minnesota Supreme Court disagreed, holding that although a public university may not “regulate a student’s personal expression at any time, at any place, for any claimed curriculum-based reason,” the punishment was justified because it was based on “written academic program rules requiring the respectful treatment of human cadavers.”4

Two years later a Central Lakes College nursing student sued after he was disciplined for using Facebook to belittle another student and to “promise to give somebody a hemopneumothorax with an electric pencil sharpener.” Attempted satire notwithstanding, United States District Judge Joan N. Ericksen granted the college’s summary judgment motion, explaining: “Central Lakes College may hold students in its associate degree nursing program to the standards of the nursing profession.”5

Two takeaways from the campus cases are that professional training begins in the classroom and that online satire will be judged under an objective standard. The same principles would readily apply in the employment context.

However, as demonstrated by the high-profile case of a Rogers High School student who was punished for a two-word Twitter response, educators and employers risk going too far when imposing discipline for social-media use.

A two-word Tweet

The two words were “Actually yes.” They came in response to an anonymous internet question about whether the 17-year-old had “made out” with a 28-year-old Rogers High School teacher.6 The student said the tweet was meant to be satirical but the school’s administrators were not laughing. According to a civil complaint, the tweet had “damaged a teacher’s reputation” and justified the student’s suspension.7

But it was the student, not the school, who filed the federal lawsuit claiming defamation and violation of the 1st and 14th Amendments. According to the complaint, the school’s discipline caused him to change school districts. He also alleged that media comments by the Rogers police chief alleging he had committed “a crime” and could “could face felony charges” constituted defamation.8

The school district sought dismissal on grounds the tweet was “obscene,” had disrupted school decorum, and was “lewd and vulgar.” In August 2015, Judge John R. Tunheim rejected the defenses and denied the motion to dismiss. The Star Tribune reported the case settled in December 2015 for $425,000.

An important factor was that the student used social media while off-campus. That also was a material fact in a case in which the Minnewaska Area School District punished a sixth-grader for two Facebook posts, one claiming a hall monitor was mean and another demanding to know who told on her by providing the first post to school administration.9

After the school requested access to the student’s social-media password, her mother filed a federal lawsuit. In denying the school district’s motion to dismiss, Judge Michael J. Davis ruled the Facebook postings were “a far cry from the statements made by the students in cases in which courts have approved of school intervention.”10 According to the Star Tribune, the case settled for $70,000.

The cases provide poignant reminders that although students might face consequences for their social-media posts and comments, students retain free speech rights, particularly off-campus and on their own time. Educators would be wise to proceed carefully when imposing discipline.

Employment, labor, and an exception

Similar rules apply in the employment context. Work is for work, work computers are for working, and employers generally are within their rights to regulate social-media use on work time if they do so evenhandedly and for work-related reasons. Even off-hours use might be regulated when an employee’s initial and continued employment are conditioned on written social-media policies.

An important exception arises under the National Labor Relations Act. When employees use Facebook or Twitter to communicate about work conditions, federal law might protect the activity even when the employer is private and the employees have no union.

In 2011 and 2012, the National Labor Relations Board issued fact sheets specifying that protection “extends to certain work-related conversations conducted on social media, such as Facebook and Twitter.”11 The materials cite a 2012 NLRB report that provided two guiding principles for employers and employees:

n Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

n An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

More recently, the NLRB and federal courts of appeals have been increasingly protective of employees’ rights to discuss work on Facebook, even when profanities are used.12

The highest-profile NLRB case from Minnesota did not involve employees’ use of social media but rather an employer’s use of Facebook. The so-called “sick sandwich” case involved a Twin Cities sandwich-shop franchisee who maintained a “Jimmy John’s Anti-Union” page to encourage employees to take down posters in which they advocated for paid sick leave. One such plea included a warning to customers that the employee who prepared their sandwich might have been working sick.13

The NLRB ruled the employees’ “sick sandwich” posters were permissible but the employer’s Facebook page was an unfair labor practice. In affirming the decision earlier this year, the 8th Circuit singled out a Facebook post in which the employer warned employees that their efforts to speak out about sick leave “threaten our business and your jobs.” That post, according to the 8th Circuit, could be viewed as an illegal threat of reprisal.14

Defamation, jurisdiction, and limits

The most obvious possibility of litigation stemming from Facebook and Twitter concern defamation and privacy. Litigants and their lawyers should understand that courts have limited jurisdiction and power to adjudicate such cases and order injunctive relief.

A seminal Minnesota Supreme Court case in 2002 involved the now-antiquated form of online communication called a newsgroup. A Minnesotan made a comment challenging the credentials of a fellow user, an Alabama professor, who sued the Minnesotan for defamation in Alabama.15 On the advice of counsel, the Minnesotan did not did not answer the complaint, which resulted in a $25,000 default judgment filed in Ramsey County.

The jurisdictional gamble paid off. The Minnesota Supreme Court held that although the comment might have been directed at the Alabaman, it was not “expressly aimed” at Alabama and therefore personal jurisdiction was lacking. Therefore the judgment could not be enforced in Minnesota.

A decade later, the principle has been applied to Facebook and Twitter. Numerous courts have held “it is necessary that the nonresident defendant not only intentionally post the statements on the Facebook page, but that the defendant expressly aim or specifically direct his or her intentional conduct at the forum, rather than at a plaintiff who lives there.”16

The jurisdictional limitation has been extended outside the defamation context, such as in a patent case where a Florida defendant’s “Facebook-friending of Nebraska residents” and invitation to a Nebraska resident to “like” a Facebook page did not support exercise of personal jurisdiction.17

The power of courts to regulate social-media use is extremely limited. Although jurors are routinely admonished against using Facebook or Twitter to post about their experiences during trial, “courts generally will not restrict extrajudicial statements by parties and counsel unless there is a reasonable likelihood of prejudicing a fair trial by tainting or biasing the jury pool.”18

Generally, for a court to take action, social-media comments must cross the line from free speech to an act of harassment. Injunctions must be narrowly tailored to restrict only harassment as defined under Minnesota criminal law.19

And ultimately, judges know as well as lawyers and their clients that Facebook, Twitter, and other social media have redefined privacy. In affirming dismissal of a Facebook user’s petition for a harassment restraining order, the Minnesota Court of Appeals held that posting “innocuous family photos” on Facebook and making even “mean and disrespectful” comments about them does not “affect a person’s safety, security, or privacy—and certainly not substantially so.”20 

Steven P. Aggergaard is a shareholder at Bassford Remele, PA in Minneapolis, where defamation and the 1st Amendment are part of his practice.

 

Notes

1 “Hundreds register for new facebook website,” Harvard Crimson 2/9/2004. www.thecrimson.com/article/2004/2/9/hundreds-register-for-new-facebook-website.

2 In re Forgione, 908 A.2d 593, 603 n.11 (Conn. Super. Ct. 2006).

3 816 N.W.2d 509 (Minn. 2012).

4 Id. at 521, 524.

5 Keefe v. Adams, 44 F. Supp. 3d 874, 888-89 (D. Minn. 2014).

6 “Rogers student wins $425k settlement after suspension for tweeting he made out with teacher,” Star Tribune 12/8/2015. www.startribune.com/rogers-student-wins-425k-settlement-after-suspension-for-tweeting-he-made-out-with-teacher/361045111/.

7 Sagehorn v. Indep. Sch. Dist. No. 728, 122 F. Supp. 3d 842, 850 (D. Minn. 2015).

8 Id.

9 “ACLU wins settlement for sixth-grader’s Facebook posting,” Star Tribune 3/25/2014. www.startribune.com/minnewaska-student-wins-70k-from-school-over-facebook-post/252263751.

10 R.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F. Supp. 2d 1128, 1140 (D. Minn. 2012).

11 www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media.

12 Three D, LLC v. NLRB, 629 Fed. Appx. 33, 36 (2d Cir. 2015).

13 MikLin Enters. v. NLRB, 818 F.3d 397(8th Cir. 2016).

14 Id. at 409.

15 Griffis v. Luban, 646 N.W.2d 527 (Minn. 2002).

16 Burdick v. Superior Court, 233 Cal. App. 4th 8, 13 (2015).

17 HVLPO2, LLC v. Oxygen Frog, LLC, 2016 U.S. Dist. LEXIS 66758 (D. Neb. 5/20/2016).

18 Dahhane v. Stanton, 2015 U.S. Dist. LEXIS 168318 (D. Minn. 12/10/2015).

19 Westbrooke Condo. Ass’n v. Pittel, 2015 Minn. App. Unpub. LEXIS 22 (Minn. Ct. App. Jan. 12, 2015) (citing Minn. Stat. § 609.748, subd. 1(a)(1) (2012)).

20 Olson v. LaBrie, 2012 Minn. App. Unpub. LEXIS 126 (Minn. Ct. App. 2/13/2012).

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