Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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The ability to associate goods and services with a specific domain name can make or break a business, so much so that companies are still willing to <a href="http://www.cwcs.co.uk/blog/2013/11/most-expensive-domain-names-ever-sold.html">fork over millions to purchase domain names</a>.  And although you may consider yourself lucky to have registered a catchy domain name that drives plenty of traffic to your website, query whether the domain name is actually your property; not only do companies that provide domain name registration services frequently take the position that domain names are not property, but at least one recent case law suggests this as well.The concept that domain names can be “owned” as intangible personal property seems reasonable on its face, particularly given the close relationship between domain names and trademarks, the latter of which historically have been considered property.  Domain names frequently contain a registrant’s trade name or trademark associated with the registrant’s goods or services.  Moreover, the <a href="http://www.law.cornell.edu/uscode/text/15/1125">Anticybersquatting Consumer Protection Act of 1999</a> (15 U.S. Code § 1125) permits a trademark owner to pursue an in rem action against a domain name that violates the mark owner’s rights, and the availability of an in rem action implies that the Act treats domain names as property.On the other hand, domain names and trademarks are distinguishable.  For example, certain prerequisites for federal trademark registration, such as proof of the mark being used in interstate commerce to identify a specific type of good or service, do not apply to domain name registrations (which instead are registrable on a first-come, first-served basis).  And although similar marks used by different companies can potentially co-exist depending on territorial and other factors, each registered domain name is unique, at least with respect to the applicable <a href="http://en.wikipedia.org/wiki/List_of_Internet_top-level_domains">top-level domain</a>.  (Given that uniqueness, and the ability of domain names to “point” Internet users to information sources, domain names <a href="http://www.leagle.com/decision/199961860FSupp2d558_1557">have been likened to toll-free “vanity” telephone numbers</a>; like domain names, vanity telephone numbers that include a company’s name or mark are, in a sense, tools that can help drive traffic to the company’s offerings.)On November 7, 2013, in <a href="http://law.justia.com/cases/federal/district-courts/virginia/vaedce/1:2013cv00891/297931/12">Alexandria Surveys, LLC v. Alexandria Consulting Group</a>, the <a href="http://www.vaed.uscourts.gov/">U.S. District Court for the Eastern District of Virginia</a> held that under Virginia law, domain names, like telephone numbers, are not property.  In Alexandria, two competitors, Alexandria Surveys LLC (“ASL”) and Alexandria Consulting Group (“ACG”), each sought the rights to the domain name ALEXANDRIASURVEY.COM, which previously had been registered by Alexandria Surveys International (“ASI”), a debtor in bankruptcy.  ASL had purchased from Cox Communications ASI’s former telephone number and domain name, which had not been scheduled by the trustee in ASI’s bankruptcy proceeding.  ASI’s estate was later reopened, and among other assets, the trustee auctioned off that same telephone number and domain name to ACG.  The bankruptcy court ordered ASL to hand over the disputed assets to ACG, and ASL appealed.The District Court, noting the absence of any on-point Fourth Circuit precedent, relied on the 2000 decision in <a href="http://law.justia.com/cases/virginia/supreme-court/2000/1991168.html">Network Solutions Inc. v. Umbro International, Inc. et al.</a>, in which the Virginia Supreme Court held that domain names are contractual rights rather than property rights subject to garnishment, that is, that they are merely “the product of a contract for services between the registrar and registrant,” because they cannot exist without the provider performing services under the applicable domain name registration services agreement.  Although the court in Alexandria acknowledged a split in authority concerning the proprietary nature of telephone numbers, the court ultimately agreed with the Virginia Supreme Court’s conclusion that “Virginia does not recognize an ownership interest in . . . web addresses[,]” and held that ASI’s domain names were not transferred as part of the estate.  Although the court in Alexandria acknowledged that a domain name can be valuable, the court reasoned that such value is subjective and therefore in itself insufficient to support an argument that domain names constitute property.The view that domain names are not personal property can be viewed as contrary to the <a href="http://www.ca9.uscourts.gov/">Ninth Circuit’s</a> well-known 2003 ruling in <a href="http://caselaw.findlaw.com/us-9th-circuit/1483800.html">Gary Kremen v. Stephen Michael Cohen, et al.</a>, concerning the wrongful transfer of the highly lucrative domain name SEX.COM.  In Kremen, <a href="http://www.kremen.com/">Gary Kremen</a>, the original registrant of SEX.COM, sought to recover against Network Solutions (“NSI”) under theories of breach of contract and conversion after NSI transferred the domain name to Stephen Cohen without his authorization.  Although Kremen’s breach of contract claim failed for want of consideration—Kremen had registered SEX.COM in the mid-1990s, when NSI was issuing domain name registrations to companies and individuals free of charge—the Ninth Circuit ruled that a registrant does have a property right in a registered domain name and that the unauthorized transfer of that domain name serves as a basis for a claim of conversion.  In support of this conclusion, the Ninth Circuit pointed out that domain names represent an interest that is well-defined; that domain names are subject to exclusive possession or control; and that registrants can have a legitimate claim to exclusivity over domain names.Meanwhile, some domain name registration service providers go to great lengths to inform their customers that domain names are not property.  <a href="https://www.namecheap.com/legal/domains/registration-agreement.aspx">Namecheap’s</a> registration agreement states: “You further agree that domain name registration is a service, that domain name registrations do not exist independently from services provided pursuant to this or a similar registration agreement with a registrar, and that domain name registration services do not create a property interest.”  And GoDaddy’s registration agreement requires customers to “acknowledge and agree that by registering a domain name, you are not acquiring any property rights in that domain name.”Also keep in mind that treating domain names as property is not without potential problems.  For example, as the Virginia Supreme Court pointed out in Network Solutions, treating domain names as property and thereby subjecting them to garnishment could open the door to garnishment of other business indicia, such as corporate names, “by serving a garnishment summons on the State Corporation Commission since the Commission registers corporate names and, in doing so, does not allow the use of indistinguishable corporate names.”  It is unclear how problems like these might be resolved in the future.For now, the answer to whether domain names constitute personal property is a tough question and may depend on the jurisdiction where a claim is ultimately raised.  And, from a practical standpoint, care should be taken in how domain names are treated in commercial transactions, given that they are frequently among a business’s most important features.

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You May Not Necessarily Be the Master of Your Domain

You May Not Necessarily Be the Master of Your Domain

The ability to associate goods and services with a specific domain name can make or break a business, so much so that companies are still willing to fork over m

If an employee calls his supervisor a “nasty motherf[**]ker” on Facebook, would the employee lose the protection that he would otherwise enjoy under the National Labor Relations Act (NLRA)?  Probably not, according to National Labor Relations Board (NRLB) decisions like Pier Sixty LLC.In Pier Sixty, an employee reacted to a labor dispute by posting the following message about his supervisor on Facebook: “Bob is such a NASTY MOTHER F[**]KER don’t know how to talk to people!!!!!  F[**]k his mother and his entire f[**]ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” Despite the obscenities, the administrative law judge decided that the employee’s posting was concerted activity under the NLRA, which is activity by two or more employees that provides mutual aid or protection regarding terms or conditions of employment. This concerted activity was not egregious enough to cause the employee to lose the NLRA’s protections. Accordingly, the judge ordered the employer to reinstate the employee. This decision is not an anomaly among decisions interpreting the NLRA. In fact, a number of NLRB cases have held that use of the “f-word” did not exceed the bounds of the NLRA’s protection.This has left employers wondering: Is there any limit to what an employee can post? Can postings otherwise covered by the NLRA ever go too far and cross the line into unprotected activity? In a recent decision, Richmond District Neighborhood Center, the NLRB demonstrated that it will draw a line in the sand, albeit a thin and distant one. Certain situations, particularly egregious postings by employees on social media sites, may fall outside the protection of the NLRA, even when the postings otherwise involve concerted activity.Richmond District Neighborhood Center concerned a Facebook conversation between Ian Callaghan and Kenya Moore, who were both employed as teen activity leaders at the Richmond Neighborhood District Center, a non-profit organization that provides youth and family community programs. In a conversation visible only to their Facebook friends, Callaghan and Moore complained about management and discussed plans to defy the Center’s rules, posting statements such as:“…let them figure it out and they start loosin’ kids I ain’t help’n HAHA.”“…we’ll take advantage, play music loud … teach kids how to graffiti up the walls…. I don’t feel like being their b*tch and making it all happy-friendly middle school campy. Let’s do some cool sh*t, and let them figure out the money. No more Sean. Let’s f*ck it up.”“HAHA we gone have hella clubs and take the kids.”“[H]ahaha! F*ck em. Field trips all the time to wherever the f*ck we want!”“I’ll be back to raise hell wit ya. Don’t worry.”The Center fired Callaghan and Moore after another employee brought the conversation to its attention. Callaghan and Moore contended their activity was protected under the NLRA.The administrative law judge found that the employees were engaged in concerted activity when voicing their disagreement with the Center’s management. The judge concluded, however, that even though the employees’ remarks constituted concerted activity, the activity was not protected under the NLRA. He stated: “[T]he question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such character as to render the employee unfit for further service.”The Center explained that the employees’ Facebook conversation was detrimental to its eligibility for grants and could raise serious concerns for parents of the youth served by the Center. The judge agreed, finding that the conversation was not protected under the NRLA because it “jeopardized the program’s funding and the safety of the youth it serves.” Moreover, the conduct rendered the two employees “unfit for further service.” The judge dismissed Callaghan and Moore’s complaint.Although this decision uncovers a previously obscured line in the sand with regard to protected social media activity, employers should still exercise considerable caution when responding to complaints about an employee’s use of social media. Postings that are otherwise protected by the NLRA are unlikely to lose that protection merely because they are offensive, even if they use profanity. Nonetheless, the Richmond case reveals that conduct found to endanger an employer’s funding or client safety may potentially cross the line and fall outside the wide protection of the NLRA.Editors’ Note:  The original posts quoted in this article did not contain asterisks; such asterisks have been added by the authors of this article.

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Mary Race assists clients with a wide range of challenging privacy compliance and data security matters. Her practice focuses on managing privacy risks and helping clients develop and implement comprehensive privacy programs across a variety of industries, including tech, retail, manufacturing, advertising, social media, and communications.

Mary Race

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Uncovering a Line in the Sand: Employee Social Media Use and the NLRA

Uncovering a Line in the Sand: Employee Social Media Use and the NLRA

If an employee calls his supervisor a “nasty motherf[**]ker” on Facebook, would the employee lose the protection that he would otherwise enjoy under the Nationa

The Supreme Court’s 1968 decision in <a href="http://scholar.google.com/scholar_case?case=16997195768089298466">Pickering v. Board of Education</a> allows governmental employers, including law enforcement agencies, to fire or discipline employees for disrupting operations with excessive complaining, but it prohibits governmental employers from firing or disciplining an employee for speaking out on matters of public concern as a private citizen if the employee’s interest in speaking outweighs the agency’s interest in maintaining efficiency. While the line between disruptively complaining and responsibly speaking out may be clear enough in theory, however, it is often difficult to draw in practice, particularly when the employees in question work in law enforcement. The most recent case to dive into this thicket is <a href="https://caselaw.findlaw.com/us-5th-circuit/1689399.html">Graziosi v. City of Greenville</a>, from the Northern District of Mississippi.We <a href="https://www.sociallyawareblog.com/2013/12/05/two-circuits-address-the-first-amendment-status-of-facebook-activity/">previously discussed</a> the First Amendment rights of law enforcement personnel in connection with the Eleventh Circuit case <a href="https://law.justia.com/cases/federal/appellate-courts/ca11/12-12968/12-12968-2013-10-17.html">Gresham v. City of Atlanta</a>. In Gresham, the plaintiff was passed over for a promotion after making a Facebook post critical of what she saw as obstruction of justice by a fellow officer.  The court held that the plaintiff had spoken on a matter of public concern, but that her interest in speaking did not outweigh the government’s interest in promoting efficiency.  The key point was that the plaintiff had configured her Facebook post to be viewable only by her friends, which indicated that her post was not “calculated to bring an issue of public concern to the attention of persons with authority to make corrections . . . the context was more nearly one of Plaintiff’s venting her frustration with her superiors.”The decision in Graziosi deals with the same elusive line between mere complaining on the one hand, and alerting the public to important information about the operations of government agencies on the other.  A member of the Greenville Police Department, Sergeant Graziosi, made a series of public Facebook posts criticizing the chief of police for failing to send a representative to the funeral of a fellow officer.  Graziosi posted these complaints first as her own Facebook status update, and then posted them on the campaign page of the local mayor.  The chief of police fired Graziosi for making the posts, which the chief of police contended violated several internal police department policies that forbid public criticism and excessive complaining by officers.  Graziosi filed a lawsuit alleging that her termination violated the First Amendment.One pivotal issue in the case was whether the criticisms Graziosi posted on Facebook qualified as speaking out on a matter of public concern as a private citizen.  Graziosi argued that a decision about whether or not to send police officers to a funeral is inherently a matter of public concern because it involves the spending of public funds.  However, the court noted that if anything that involved spending funds was a matter of public concern, then “almost anything” would satisfy that requirement of the Pickering test.  Instead, the court looked to the primary motivation for speaking.  The court determined that “Graziosi’s comments to the Mayor, although on a sensitive subject, were more related to her own frustration of Chief Cannon’s decision not to send officers to the funeral and were not made to expose unlawful conduct within the Greenville Police Department.  Her posts were not intended to help the public actually evaluate the performance of the GPD.”  The court found that Graziosi was speaking out about a matter that was primarily internal to the police department, and hence, she was speaking not as a citizen, but as an employee, and not on a matter of public concern, but on a matter of personal concern.  Therefore, her comments did not pass the threshold requirement of the Pickering test.This decision is similar to the decision in Gresham, but differs in important ways.  In both cases, the complaints that a law enforcement officer posted on Facebook were denied First Amendment protection because those complaints were more fairly described as venting frustrations than as attempts to get important information to the public.  In both cases, the court found that although the topic of the speech was of at least some concern to the public, the speaker was primarily motivated by a desire to vent frustration.  In Gresham, the court made this determination by considering the audience that the plaintiff spoke to; in Graziosi, the court made this determination by considering what the plaintiff spoke about.  However, the courts applied the determination that the speaker was motivated primarily by a desire to vent at different steps in the analysis.  In Gresham, the court found that the plaintiff’s interest in complaining was less weighty than the interest of the police department in preserving efficiency.  However, in Graziosi, the court found that the plaintiff’s primary purpose of venting personal grievances defeated her claim before the weighing stage was even reached.  Because the plaintiff’s intent was primarily to vent frustration, she was not speaking as a private citizen or speaking on a matter of public concern, and hence would not have been eligible for First Amendment protection even if her interest had outweighed the interest of the police department.Viewed in the light of recent high profile situations involving governmental employees speaking out about matters of public concern contrary to applicable governmental policies, such as the leaks by <a href="http://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance">Edward Snowden</a> and <a href="http://blogs.wsj.com/washwire/2013/08/21/what-bradley-manning-leaked/">Chelsea (formerly Bradley) Manning</a>, clarifying the rules in this area is more important than ever.  And the fact that so much of the relevant communication now takes place in the diverse and always-changing world of social media only increases the complexity of the issues.  As a result, we can expect that the courts will continue to develop the law in this area for many years, but the outline of how the First Amendment applies to governmental employees using social media is at least beginning to take shape.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

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Refining the First Amendment Status of Social Media Activity by Government Employees

Refining the First Amendment Status of Social Media Activity by Government Employees

The Supreme Court’s 1968 decision in Pickering v. Board of Education allows governmental employers, including law enforcement agencies, to fire or discipline em

The latest issue of our Socially Aware newsletter is now available. In this issue, we explore legal concerns raised by Google Glass; we provide an overview of the growing body of case law addressing ownership of business-related social media accounts; we take a look at two circuit court decisions addressing the interplay between social media usage and the First Amendment; we examine the trend toward collaborative consumption and associated legal issues; we discuss an important new decision regarding unilateral modifications to online terms of use; and we highlight an industry warning to website operators who collect data for purposes of online behavioral advertising.  For a free subscription to the newsletter, please email us at <a href="mailto:sociallyaware@mofo.com">sociallyaware@mofo.com</a>.

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Hot Off the Press – New Issue of the Socially Aware Newsletter

Hot Off the Press – New Issue of the Socially Aware Newsletter

The latest issue of our Socially Aware newsletter is now available here. In this issue, we explore legal concerns raised by Google Glass; we provide an overview

Two recent U.S. appellate court decisions have clarified the extent to which the First Amendment protects the social media activities of government employees.  In <a href="https://law.justia.com/cases/federal/appellate-courts/ca11/12-12968/12-12968-2013-10-17.html">Gresham v. City of Atlanta</a>, the Court of Appeals for the Eleventh Circuit found that an individual’s First Amendment interest in posting to Facebook is reduced when he or she configures such post to be private, while in <a href="https://law.justia.com/cases/federal/appellate-courts/ca4/12-1671/12-1671-2013-09-18.html">Bland v. Roberts</a>, the Court of Appeals for the Fourth Circuit held that Facebook “likes” constitute protected speech under the First Amendment.  Although both decisions deal with the rights of government employees in particular, the decisions have relevance beyond government employees.U.S. courts have long held that the government has a greater interest in restricting the speech of its employees than it does in restricting the speech of the citizenry in general.  However, the government’s ability to restrict the speech of its employees is limited by a test the U.S. Supreme Court outlined in Pickering v. Board of Education in 1968.  The test requires that, in order for the employee to maintain a successful First Amendment claim against his or her governmental employer, the employee must, among other things, show that he or she was speaking about a matter of public concern, and that his or her interest in doing so outweighs the government’s interest in providing effective and efficient service to the public.First Amendment protection for “likes”: Bland v. Roberts.  In <a href="https://www.sociallyawareblog.com/2012/08/14/update-whats-not-to-like/">August of 2012, we discussed</a> the decision of a District Court in Virginia that a government employee “liking” a Facebook page was insufficient speech to merit constitutional protection.  Deputies of the Hampton Sheriff’s Office alleged that they were terminated because they “liked” the campaign page of a candidate running against their boss, the current sheriff.  While much of the suit dealt with the current sheriff’s claim to qualified immunity and whether or not the deputies held policymaking positions which can be staffed based on political allegiances, the court also dismissed the deputies’ contention that their termination violated their First Amendment right to speak out on a matter of public concern.  The court held that merely “liking” a page “is not the kind of substantive statement that has previously warranted constitutional protection.”  The decision stirred considerable controversy and debate among constitutional scholars and within the social media industry.On appeal, the Fourth Circuit overturned the lower court’s holding that Facebook “likes” are too insubstantial to merit First Amendment protection.  The court held that “liking” a Facebook page is both pure speech and symbolic speech, and is protected by the First Amendment even with respect to government employees.  The court found that the act of “liking” a Facebook page results in publishing a substantive position on a topic.  The court reasons that “liking” a political candidate’s campaign page is “the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”  As a result, at least within the political context, “likes” enjoy the same strong First Amendment protection that other political speech does.First Amendment protection for private posts: Gresham v. City of Atlanta.  The interplay between social media and the First Amendment was also at issue in the Gresham case.  In Gresham, an Atlanta police officer named Maria Gresham became concerned when a suspect she arrested was taken into a room alone by another officer who turned out to be the suspect’s aunt.  The suspect gave some items to his aunt and they may have spoken.  Officer Gresham felt that this constituted an inappropriate interference with her investigation and she aired her concerns by making a Facebook post which was only viewable by her friends.  In Atlanta, departmental rules for the conduct of police officers prohibit publicly criticizing other officers.  The department received a complaint that Gresham’s post had violated these rules and opened an investigation.  As a result of that investigation, Gresham was passed over for a promotion.  Gresham sued the city, asserting that the department had retaliated against her for engaging in protected First Amendment speech.The District Court for the Northern District of Georgia found that Gresham’s First Amendment interest in making the post was outweighed by the City of Atlanta’s interest in maintaining good relations among its police officers.  In weighing Gresham’s First Amendment interest in making the post, the District Court noted that “the ability of the citizenry to expose public corruption is one of the most important interests safeguarded by the First Amendment.”  The District Court found that Facebook posts are protected under the First Amendment.  It also found, however, that the officer’s decision to configure her Facebook post to be viewable only by her friends made “her interest in making the speech . . . less significant than if she had chosen a more public vehicle.”On appeal, the Court of Appeals for the Eleventh Circuit upheld the District Court’s decision and expanded on the District Court’s reasoning, observing that “the context of Plaintiff’s speech is not one calculated to bring an issue of public concern to the attention of persons with authority to make corrections, nor was its context one of bringing the matter to the attention of the public to prompt public discussion to generate pressure for such changes.”  Because her audience was small and poorly situated to act on the information she shared, the officer’s “speech interest is not a strong one.”  The Court of Appeals agreed with the District Court that the government has a strong interest in maintaining good relations among police officers, and that this interest outweighed Gresham’s weak First Amendment interest in making the post.  As a result, the City of Atlanta was found not to have violated Gresham’s First Amendment rights by restricting her speech.The resulting rule for Gresham and her fellow officers may be somewhat counterintuitive: Atlanta police officers are effectively allowed to criticize one another very privately or very publicly, but the officers risk being disciplined if they criticize another officer in a somewhat public forum.  A minor breach of the departmental policy against public criticism is more likely to carry consequences than a major breach is.  That being said, the purpose underlying the Pickering rule is to ensure that crucial information reaches the public; making a post private undermines that purpose, so it reduces the protection the post receives under the Pickering rule.In any event, with social media becoming more and more integrated into the daily fabric of our lives, one can assume that courts will be struggling with the intersection of free speech rights and social media usage for years to come.

Two Circuits Address the First Amendment Status of Facebook Activity

Two recent U.S. appellate court decisions have clarified the extent to which the First Amendment protects the social media activities of government employees.  

Two Circuits Address the First Amendment Status of Facebook Activity

Contractual provisions giving a website operator the unilateral right to change its end user terms of service are ubiquitous and appear in the online terms of many major social media sites and other websites, including Facebook, Twitter, Instagram and Google. Although amendments to terms of service <a href="http://www.theverge.com/2013/10/17/4845828/digging-through-new-google-terms-of-service">quite often</a> <a href="http://consumerist.com/2009/02/15/facebooks-new-terms-of-service-we-can-do-anything-we-want-with-your-content-forever/">cause</a> <a href="http://readwrite.com/2011/03/03/how_recent_changes_to_twitters_terms_of_service_mi#awesm=~omVExYmQimbZMM">consumers</a> <a href="http://www.huffingtonpost.com/2012/12/20/instagram-terms-of-service-change_n_2333284.html">to complain</a>, litigation regarding such changes is relatively rare. A recent decision from the U.S. District Court in the Northern District of Ohio, however, challenges the enforceability of unilateral amendments to online terms of service in at least some circumstances.In Discount Drug Mart, Inc. v. Devos, Ltd. d/b/a Guaranteed Returns, Discount Drug Mart, a distributor of pharmaceuticals, sued Guaranteed Returns, a company that processes pharmaceutical product returns, for Guaranteed Returns’ failure to remit credits due under a written distribution agreement between the parties. Guaranteed Returns pointed to the forum selection clause on its website, which it argued required the parties to bring suit in either Nassau or Suffolk County in the State of New York. This provision appeared in Guaranteed Returns’ online “standard terms and conditions,” which Guaranteed Returns claimed were incorporated into the parties’ written distribution agreement.The court held otherwise, citing the Sixth Circuit case Int’l Ass’n of Machinists and Aerospace Workers v. ISP Chemicals, Inc. and stating that “[i]ncorporation by reference is proper where the underlying contract makes clear reference to a separate document, the identity of the separate document may be ascertained, and incorporation of the document will not result in surprise or hardship.” The court also pointed out that Guaranteed Returns’ purported right to change its standard terms and conditions unilaterally could result in Discount Drug Mart being subject to surprise or hardship. Further, the court noted that there was no evidence that the forum selection clause had been included in the standard terms and conditions at the time the distribution agreement was signed (and Guaranteed Returns did nothing to try to prove this fact). Thus, the court concluded that the standard terms and conditions were not properly incorporated into the distribution agreement (although the court ended up finding in favor of Guaranteed Returns on other grounds).It is difficult to say what, if any, precedential force Discount Drug Mart will have. Putting aside the facts that the case was brought in the Northern District of Ohio and was ultimately dismissed on grounds unrelated to this holding, the underlying background of the case was nuanced. First, although the court stated in dicta that “one party to a contract may not modify an agreement without the assent of the other party,” a statement that could be interpreted to mean that unilateral amendment of contracts is never permitted, the holding itself was limited to situations in which terms and conditions are incorporated by reference. That said, even this limited holding may be relevant to many website operators in the social media world, as the larger social media sites often use a network of contracts that reference each other (for example, Facebook’s “<a href="https://developers.facebook.com/policy/">Platform Policies</a>” requires developers to agree to the company’s “<a href="https://www.facebook.com/#!/legal/terms">Statement of Rights and Responsibilities</a>,” which are “requirements for anybody who uses Facebook” and which can be unilaterally modified by Facebook).Second, the Discount Drug Mart court did not elaborate on the “surprise or hardship” standard, so it is possible that unilateral changes to end user terms would be upheld if the website operator gave proper notice to its end users of such changes in order to avoid causing surprise or hardship. The leading social media platforms currently have different approaches to providing notice of changes to their online terms of use. For example, <a href="https://www.facebook.com/legal/terms">Facebook</a> provides seven days’ notice (although “notice” here includes posting on Facebook’s site governance page); <a href="https://twitter.com/tos">Twitter</a> will notify users of changes to its terms of service via an “@Twitter” update or through email (but only for changes that Twitter deems to be material in its sole discretion); and <a href="http://instagram.com/legal/terms/">Instagram</a> notifies users of its changes to its terms of use by posting them on Instagram. A court could find that notification of changes using one or more of these methods is sufficient to avoid subjecting an end user to surprise or hardship.Finally, the court seemed to give weight to the lack of any evidence that the forum selection clause was included in Guaranteed Returns’ standard terms and conditions at the time that the parties entered into the distribution agreement. Today, however, most Internet service providers include “last modified” dates in their terms of use. Recording version dates and keeping copies of older terms of use could help a website operator show that a particular provision existed in terms of use at the time that the parties entered into an agreement referencing such terms (although these practices could also provide evidence to the contrary).Discount Drug Mart is not the first decision to challenge a company’s right to unilaterally modify its online terms and conditions. In the 2007 case <a href="http://pub.bna.com/eclr/0675424_071807.pdf">Douglas v. Talk America, </a>the Ninth Circuit Court of Appeals held that Talk America could not enforce an arbitration clause against an individual who had initially accepted the applicable terms of service prior to Talk America’s unilateral addition of the arbitration clause. Although Talk America posted the amended terms online, the court noted that the individual’s assent to the new terms could only be inferred “after [the individual] received proper notice of the proposed changes.” Discount Drug Mart seems consistent with this decision to the extent that the case suggests that failure to provide adequate notice to end users of changes to online terms may invalidate such changes.A decision in the Northern District in the U.S. District Court of Texas in 2009, <a href="http://epic.org/amicus/blockbuster/Opinion_DC.pdf">Harris v. Blockbuster Inc., </a>went further than the Douglas court by holding an arbitration clause in Blockbuster’s online terms of use rendered the terms of use illusory and unenforceable. The court’s holding was based on the fact that Blockbuster could, in theory, unilaterally modify the arbitration provisions and apply those modified provisions to earlier disputes. Harris cited the Fifth Circuit case, <a href="https://law.justia.com/cases/federal/district-courts/FSupp2/49/529/2467514/">Morrison v. Amway Corp., </a>in which the court had held an arbitration clause in online terms of use to be illusory under Texas law when defendant Amway attempted to apply arbitration terms that been had modified after the plaintiff had agreed to Amway’s standard terms. Although limited to the Northern District of Texas (for now), the implications of Harris could be troubling to online service providers, as the case suggests that if a company includes language allowing it to make unilateral changes to its terms by simply posting the revised terms on its website, those terms could be deemed invalid. In fact, <a href="http://blog.ericgoldman.org/archives/2009/06/stop_saying_we_1.htm">at least one legal scholar</a> has suggested that companies should not include such language in their online terms.Discount Drug Mart does not necessarily provide any clear guidelines that online service providers must follow for their online terms to be valid and enforceable. Because the court based its holdings on specific factual circumstances and provided little insight into its reasoning, it is unclear at this point whether other courts will follow this opinion and impose limitations on companies’ rights to unilaterally change their online terms of service under different circumstances. However, given the legal precedent on the subject, it will likely behoove companies that incorporate their online terms into other documents to consider re-evaluating their amendment and notification practices to minimize any chance of subjecting end users to “surprise or hardship.”