Five DC firefighters are in hot water over some controversial comments they posted on Facebook.
The controversy began when a firefighter posted a photo of a DC police officer who had just issued the firefighter a traffic ticket. Along with the photo the firefighter included a comment to the effect "This is why we should be careful and take our time getting to incident scenes."
The comment was understood to refer to a March, 2013 incident where an injured DC motorcycle police officer had to wait 20 minutes for an ambulance. Following the initial post, four other firefighters added their thoughts.
Due to the inflammatory nature of the posts, Fire Chief Kenneth Ellerbe transferred the five members to desk jobs while the matter is investigated.
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This will be an interesting case to follow as both the First Amendment and the right of unionized employees to engage in “concerted activities” in social media, are implicated. We will have to await more detail to be able to fully analyze both aspects.
The following is taken from the NLRB’s August 18, 2011 memo on social media, outlining the approach it applies when looking at whether employee speech in social media is protected under either of two tests it applies in such cases: Atlantic Steel and Jefferson Standard. The case involved a car salesman who posted photos and comments about his dealership that his employer took offense to.
Although the employee posted the photographs on Facebook and wrote the comments himself, we concluded that this type of activity was clearly concerted. We found that he was vocalizing the sentiments of his coworkers and continuing the course of concerted activity that began when [coworkers] raised their concerns at the staff meeting. Further, we concluded that this concerted activity clearly was related to the employees’ terms and conditions of employment. …
Atlantic Steel is generally applied to an employee who has made public outbursts against a supervisor, while Jefferson Standard is usually applied where an employee has made allegedly disparaging comments about an employer or its product in the context of appeals to outside or third parties.
Applying Atlantic Steel, we found that the employee’s Facebook postings … were not so opprobrious as to lose the Act’s protection. The activity concerned a subject matter protected under Section 7. Further, although the activity was not provoked by any unfair labor practice committed by the Employer, the nature of the outburst was much less offensive than other behavior found protected by the Board. …
Under Jefferson Standard, the inquiry is whether the communication is related to an ongoing labor dispute and whether it is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection. Here, the employee’s postings were neither disparaging of the Employer’s product nor disloyal. The postings merely expressed frustration with the Employer’s choice of food at the sales event. They did not refer to the quality of the cars or the performance of the dealership and did not criticize the Employer’s management. We found it irrelevant that the postings did not clearly indicate that they were related to a labor dispute given that they were neither disparaging nor disloyal.
UPDATE: May 15, 2013
Cyberbullying – The Ugly Side of Social Media
We have all seen the comical photos of Walmart shoppers in various modes of dress and undress. One performer has even made several humorous music videos depicting the weirdos and crazies.
Facebook itself had its origins by showing photos of college students and allowing people to rate them as “hot or not”. It’s all in good fun, right? No harm, no foul.
So what is going on in Emmitsburg, Maryland, home of the US Fire Administration and the National Fire Academy, where a mother has declared war on cyberbullying after a firefighter posted photos of her daughter on line accompanied by unflattering comments.
Sherry Myers is furious about photos of her daughter Jayden that were posted online by a Pennsylvania firefighter that mocks her shoes, and asks people to guess whether Jayden is a boy or a girl.
It’s the other side of the laughter… the painful side… the ugly side of social media.
Here is a link to Sherry’s Facebook page, which she has aptly named Justice for Jayden. Spend some time there and read some of the comments from those who have been hurt by cyberbullies.
Here is more on the story itself.
While all the facts have yet to be sorted out in the Myers case – let me make a few points about where we are law wise on cyberbullying.
Here in the US, the laws are way behind the times. While some states have enacted laws to address cyberbullying, most states rely upon tort privacy laws developed in the 1800s and 1900s. These laws did a decent job until fairly recently. Today they are being asked to address an entirely new problem… and it may be a task they are not up to.
Is it really an entirely new problem? Bullying has always been around and always will be – but when it comes to spreading hurtful information on a massive scale – I say what we are facing is an entirely new problem.
In the late 1800s, how would one go about spreading embarrassing rumors, malicious falsehoods, or even breach a person’s right to privacy on a massive scale? The options were pretty limited and usually required large sums of money to take out newspaper ads, or influence reporters and editors in order to spread a story very far. The spreading of the story would be relatively slow compared with today – and the courts did offer some remedies that could address those mean spirited activities. Newspapers also had to be concerned about such suits and thus had an incentive to do some self-policing of what was published.
The 1900s brought us new means of mass communications through radio and later television. Still these methods of communication were beyond the financial means of most people and the law offered realistic remedies to address any wrongdoing that did occur. Like the newspapers, radio and television stations themselves had good reason to watch what was said out of fear of becoming the target of such a suit.
But what about spreading malicious information in the Internet Age – where virtually anyone can communicate with thousands, even millions, for free and virtually instantly? What about the fact that people who have no financial footprint to speak of can spread malicious information to an unprecedented degree with little to no risk of legal consequences? No self-policing… they are judgment-proof… or close enough to make the cost of a civil suit unrealistic for most people.
How exactly does the law – developed originally to address problems back in the Pony Express days, give Sherry and Jayden Myers some measure of comfort, some justice?
And just as importantly, how do we, as members of the Internet community, draw our own lines about what is and is not fair game when it comes to humor, satire and parody?
The two issues are linked… or at least they should be.
Can we protect Jayden and still have our funny Walmart photos? Is there a line that can be drawn that makes one OK and the other not?
The law should reflect the ethical choices we as a society believe in.
Posted in Ethics, First Amendment, Humor, Municipal Liability, Social Media, You Can't Make This Stuff Up
Tagged digital imagery, Justice for Jayden, malicious comments, privacy, Sherry Myers