Directions: Choose to post on one of the following issues. (Remember to also che

Question

Directions: Choose to post on one of the following issues. (Remember to also check out the cases in the External Links section on Facebook!!)

1. Go to the Discussion Board forum "Regulation of Internet Business/ Right of Technology Privacy in the Workplace".

2. Answer both parts A and B : (I think you will find this discussion relevant - it should give rise to some interesting debates on the Discussion Board!

PART A:

Give an example of three of the six settings in which the law applies to conducting business on the internet and your personal experience with each. Did you feel you were legally protected? Were you aware of what your legal protections were?

(check your book!)

AND

PART B:
Read

Cases are given below:

The U.S. Supreme Court's decision in City of Ontario, California V. Quon summary

Supreme Court Issues Highly Anticipated City of Ontario v. Quon Decision

By Adam Santucci on June 22, 2010

POSTED IN PUBLIC EMPLOYERS

On June 17, 2010 the United States Supreme Court issued the highly anticipated decision City of Ontario v. Quon (pdf). The case was closely watched by many in the human resources and employment law spheres because it was thought that the case would shed valuable light on employees’ privacy rights in the area of employer-provided electronic devices. The Court admitted that the case raised issues of "far-reaching significance," but nonetheless unanimously decided the case on previously established legal principals, and left many questions unanswered.

Quon was appealing for many reasons, not the least of which were the facts of the case. In 2001, the City of Ontario, California, Police Department issued members of the SWAT team two-way pagers in an effort to help the team mobilize and respond to emergencies quickly. The City had a contract with Arch Wireless Operating Company (Arch), also a party to the litigation, to provide wireless services for the pagers. The City’s "Computer Usage, Internet, and E-Mail Policy" applied to text messages sent via the pagers, and the policy specifically put employees on notice that they should have no expectation of privacy or confidentiality.

Quon and other officers exceeded the monthly text message limit many times, but a Lieutenant informed Quon, and others, that if they paid for the excess text messages, he would not audit the text message records to determine whether the excess messages were work-related or personal. Quon and other officers took advantage of this opportunity and paid for the excess text messages. After several months, the Chief of Police determined that an audit should be conducted to determine whether the text message limit was too low, or whether the officers were using the pagers for personal reasons too often. The audit revealed that Quon was "sexting" his wife and his mistress while on duty. Presumably, Quon was disciplined for his actions.

Quon and others filed suit against the City, the Department and the Chief, alleging that the audit violated their Fourth Amendment right to be free from unreasonable searches. Quon also filed suit against Arch, alleging a violation of the Stored Communications Act, because Arch turned over the transcripts of the text messages to the Chief. The Ninth Circuit Court of Appeals reversed the District Court (pdf) and held that the City, the Department and the Chief did in fact violate Quon’s Fourth Amendment rights, and held that Arch violated the Stored Communications Act by turning over the text transcripts.

The Supreme Court agreed to review the case only on the Fourth Amendment issue, and therefore, the Stored Communications Act judgment against Arch Wireless remains intact. The Court made many assumptions in its decision, and therefore failed to answer many questions presented by the case. Instead, the Court focused on one narrow issue, i.e. whether the search was "reasonable," to determine the outcome. The Court determined that the review of Quon’s text messages was reasonable, and therefore, not a violation of the Fourth Amendment.

In order to be reasonable, a public sector employer’s work-related search must be justified before the search, and the search must be reasonably related to the justification and cannot be excessively intrusive. The Court held that the search of Quon’s records was justified because many officers exceeded the text message limit, and the Chief needed to determine whether that was because the limit was too low, or because the officers’ personal usage was too high. The Court also concluded that the scope of the search was appropriately limited. Importantly, the Court noted that it would not have been reasonable for Quon to have concluded that his messages were in all circumstances immune from review. Thus, the search was justified and not excessive, and therefore, there was no Fourth Amendment violation.

While the Quon decision was highly anticipated for many reasons, including the interesting facts and the potentially far-reaching implications of any decision outlining employees’ privacy rights in the workplace, it left many observers wanting more. The decision did leave the door open for both employees and employers to further define the landscape of employees’ privacy rights in the workplace, and dropped clues as to what the Court will consider when the issue of employee privacy appears again.

In addition, the decision was important for public sector employers that provide electronic communication devices to employees. Public sector employers are permitted to "search" electronic records when the search is justified and appropriately limited in scope to the justification. In other words, although not every search is permissible, a well-justified and well-tailored search will not be found to be a violation of the Fourth Amendment.

Finally, all employers, public and private, should make certain that supervisors and managers are properly trained regarding policies related to electronic resources and devices to ensure that they are not waiving any of the employer’s rights to enforce the policy. Therefore, all employers should review the Court’s decision and determine what, if any, policy and procedure changes are necessary.

The Article by Adam Lipkin that appeared in the New York Times (http://www.nytimes.com/2010/01/22/us/politics/22scotus.html)

WASHINGTON — Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.

he 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.

The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. Though the decision does not directly address them, its logic also applies to the labor unions that are often at political odds with big business.

The decision will be felt most immediately in the coming midterm elections, given that it comes just two days after Democrats lost a filibuster-proof majority in the Senate and as popular discontent over government bailouts and corporate bonuses continues to boil.

President Obama called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

The justices in the majority brushed aside warnings about what might follow from their ruling in favor of a formal but fervent embrace of a broad interpretation of free speech rights.

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of the court’s conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled two precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

The 2002 law, usually called McCain-Feingold, banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.

The law, as narrowed by a 2007 Supreme Court decision, applied to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

The five opinions in Thursday’s decision ran to more than 180 pages, with Justice John Paul Stevens contributing a passionate 90-page dissent. In sometimes halting fashion, he summarized it for some 20 minutes from the bench on Thursday morning.

Joined by the other three members of the court’s liberal wing, Justice Stevens said the majority had committed a grave error in treating corporate speech the same as that of human beings.

Eight of the justices did agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements, at least in the absence of proof of threats or reprisals. “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way,” Justice Kennedy wrote. Justice Clarence Thomasdissented on this point.

The majority opinion did not disturb bans on direct contributions to candidates, but the two sides disagreed about whether independent expenditures came close to amounting to the same thing.

“The difference between selling a vote and selling access is a matter of degree, not kind,” Justice Stevens wrote. “And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”

Justice Kennedy responded that “by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

The case had unlikely origins. It involved a documentary called “Hillary: The Movie,” a 90-minute stew of caustic political commentary and advocacy journalism. It was produced by Citizens United, a conservative nonprofit corporation, and was released during the Democratic presidential primaries in 2008.

Citizens United lost a suit that year against the Federal Election Commission, and scuttled plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet.

The majority cited a score of decisions recognizing the First Amendment rights of corporations, and Justice Stevens acknowledged that “we have long since held that corporations are covered by the First Amendment.”

The Article by Justin Jouvenal that appeared in the Washington Post on August 9,2012, "If you hit "like", is that Free Speech?" Front page. http://www.washingtonpost.com/local/crime/a-facebook-court-battle-is-liking-something-protected-free-speech/2012/08/08/538314fe-e179-11e1-ae7f-d2a13e249eb2_story.html

Daniel Ray Carter Jr. logged on to Facebook and did what millions do each day: He “liked” a page by clicking the site’s thumbs up icon. The problem was that the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va.

That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the center of an emerging First Amendment debate over the ubiquitous digital seal of approval: Is liking something on Facebook protected free speech?

Carter filed a lawsuit claiming that his First Amendment rights had been violated, and his case has reached the U.S. Court of Appeals for the 4th Circuit. This week, Facebook and the ACLU filed briefs supporting what they say is Carter’s constitutional right to express his opinion, signaling the case’s potentially precedent-setting nature.

The interest was sparked by a lower court’s ruling that “liking” a page does not warrant protection because it does not involve “actual statements.” If the ruling is upheld, the ACLU and others worry, a host of Web-based, mouse-click actions, such as re-tweeting (hitting a button to post someone else’s tweet on your Twitter account), won’t be protected as free speech.

“We think it’s important as new technologies emerge ... that the First Amendment is interpreted to protect those new ways of communicating,” said Rebecca K. Glenberg, legal director of the ACLU of Virginia. “Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.”

Facebook’s like button appears next to many different types of content on the site, from photos of a friend’s kids to an organization’s page to news articles. When someone clicks the button, an announcement is posted on his or her profile saying that the user likes that piece of content. The like is usually displayed to the user’s Facebook friends as well. Facebook says more than 3 billion likes and comments are registered every day.

The like controversy is just one of many thorny issues surrounding social media in the workplace.

In April, the Marine Corps said it would discharge a sergeant who criticized President Obama on his Facebook page — including allegedly putting the president’s face on a poster for the movie “Jackass.” And last fall, the National Labor Relations Board ruled that a New York nonprofit illegally fired five workers who criticized a colleague on the site.

The board, a federal agency that brings labor-related complaints on behalf of workers, said it had seen the number of cases involving social media skyrocket from zero to more than 100 over five years.

Carter’s troubles began in the summer of 2009, when longtime Hampton Sheriff B.J. Roberts was running for reelection, according to the lawsuit, filed in federal court in Newport News in March 2011. Roberts learned that some of his employees, including Carter, were actively supporting another high-ranking Sheriff’s Office official, Jim Adams, in the election.

Carter liked Adams’s campaign page on Facebook, according to court records. When Roberts learned of the campaigning on the site, he became “incensed” and called a meeting of employees, according to the lawsuit. He allegedly told them that he would be sheriff for “as long as I want it.”

After the meeting, the lawsuit says, Roberts approached Carter and told him: “You made your bed, now you’re going to lie in it — after the election you’re gone.”

About a month after Roberts was reelected, Carter and five other employees who supported Adams or did not actively campaign for Roberts were fired, according to the lawsuit. The other employees are also parties in the lawsuit. Carter and his attorneys did not return calls seeking comment.

In filings in response to the suit, Roberts’s attorney disputes Carter’s version of events and says the firings were not politically motivated. The attorney did not return a call for comment, and Roberts could not be reached.

“All employment decisions involving plaintiffs were constitutional, lawful, not the result of any improper purpose or motive, and not in retaliation for political expression,” the sheriff’s attorney wrote in the filings.

Roberts said that some of the fired deputies had unsatisfactory work performance and that the campaigning had disrupted the workplace.

U.S. District Judge Raymond A. Jackson issued a summary judgement against Carter and the other plaintiffs in January. In his explanation of the ruling on Carter’s claims, he dismissed the argument that a Facebook like is constitutionally protected speech.

“Merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Jackson wrote. “In cases where courts have found that constitutional protections extended to Facebook posts, actual statements existed within the record.”

Facebook took issue with the decision, saying in its filings that likes are the “21st-century equivalent of a front-yard campaign sign.” (The Washington Post Co.’s chairman and chief executive, Donald E. Graham, is a member of Facebook’s board of directors.)

Jackson’s decision has also drawn criticism from some legal experts. Eugene Volokh, a law professor at the University of California at Los Angeles, said firing government employees for speaking out about matters of public concern is generally unconstitutional.

He said there are some exceptions, such as when a high-ranking employee’s political affiliations are relevant to the job, or if the speech greatly disrupts the workplace or diminishes public confidence in the government agency.

In the Sheriff’s Office case, Volokh said, Jackson upset a precedent with deep roots in U.S. law.

“The judge’s rationale that a like on Facebook is insufficient speech is not right,” Volokh said. “The First Amendment protects very brief statements as much as very long ones. It even protects symbolic speech, like burning a flag.”

Volokh, like the ACLU, says liking is similar to putting a bumper sticker on a car, so it should be protected. He said he thinks the 4th Circuit will probably overturn the district judge’s ruling — but if it does not, it would be a significant moment.

“If the 4th Circuit agrees with the judge — that liking is not protected speech — that would suggest an overturning of precedents,” Volokh said. “It would be interesting to see what the Supreme Court would do with that decision.”

Answer the following:

What did the Court rule with regard to the California police department right to audit the text messages on a pager the city had issued a police officer.

Did the Court hold that an employee has no right to privacy in the work place?

Do you agree or disagree with the decision - why or why not?

Given the Supreme Court's ruling in City of Ontario - what do you think of the lawsuit in VA regarding whether hitting "like" is protected free speech? How do you think the court will rule in this case?

Explanation / Answer

Court eventually stated that reviewing of Quonset text messages was reasonable & therefore no violation of fourth amendment act. No, but court stated that employee do have right to privacy in the workplace, provided its privates texts are monitored in a fair way. Yes I totally agree with this decision because here it's a win win situation rather than sticking to their own respective issues. The lawsuit in VA regarding the like button as a protected speech is quite an interesting issue. As per the amendments which also covers even the brief symbols or logos, 'like' comes under this one. Some might think that hitting like is unprotected free speech, but it falls into the category and is being used significantly as well. I think court would have to rule the decision in favour of the facebook as it's a part of protected speech.

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