Social networking v. the employment-at-will doctrine: a potential defense for employees fired for facebooking, terminated for twittering, booted for blogging, and sacked for social networking.

• Author: Crane, Catherine

1. Introduction

   Everyone is doing it: Grandma Margaret, Ginkgo the Black Labrador, and even President Obama have all jumped into the social networking craze via Facebook and a host of other social media options now available in cyberspace. (1) With more than 800 million active Facebook users, over half of which visit the site daily, (2) more than 181 million blogs bouncing around the blogosphere, (3) and Twitter being the 15th most visited webpage in the world, (4) the constant barrage of social media-related firings popping up in the news (5) should thus come as little surprise. Moreover, the rate of these high-profile terminations will probably accelerate in the next few years as the original college-aged Facebook users6 begin their professional lives and enter the workforce. And when you consider that "[y]ounger generations have much less concern about online privacy than older generations," (7) reflecting a massive societal shift in privacy norms, (8) employer backlash over employee Internet speech is destined to become a permanent landmine in the employment law landscape.

   Yet interestingly, the crux of the employee social networking debate lies in the vastly different perceptions held by employers and employees on employee privacy rights. While most business executives assert they have a right to know about all of their employees' social networking activities, most employees believe their bosses have no right to inquire into their non-work lives. (9) This discrepancy explains why efforts to resolve employee Internet speech issues range from giving employers free reign to fire employees over any Internet speech--the classic employment at-will doctrine10--to claiming an employee has "a right to a life [and a blog] away from work"11 that should be legally protected through lifestyle discrimination statutes.12 These and other proposals, however, either privilege the employer's interests above the employee's, or vice versa, always leaving one party almost powerless to defend his or her actions against the other. A more nuanced proposal, therefore, would balance the employer's interest in protecting the image of--and ensuring the smooth functioning of--his or her company13 with the employee's interest in reveling in the unprecedented phenomena of social networking14 and blogging.15 The fulcrum in this balancing act exists as one, seemingly obvious, factor: privacy settings.

   The Stored Communications Act of 1986 ("SCA") makes it unlawful to "(1) intentionally access[] without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceed[] an authorization to access that facility ... and thereby obtain[], alter[], or prevent[] authorized access to a wire or electronic communication while it is in electronic storage."16 As applied to blogging, several cases have ruled that an employer who gains unauthorized access to an employee's password-protected blog--and punishes or fires the employee for anything appearing on that blog--may have violated the SCA and thus would be liable to the employee for that unauthorized access.17 Yet another case, decided in May 2010, held that gaining unauthorized access to private Facebook wall posts and MySpace comments may also constitute a violation of the SCA.18 Although some commentators and other courts disagree with courts interpreting the SCA in this more expansive way,19 these recent rulings may nevertheless foreshadow an emerging cause of action for employees fired over their social networking or blogging speech against their former employers.

   Therefore, despite the employment-at-will doctrine generally providing private sector employers with free reign to fire employees for any Internet posting the employer finds objectionable,20 the employer will potentially face legal problems for basing the employee's termination solely on a posting the employer discovered through an unauthorized access of that posting.21 Consequently, in a legal system that provides little to no redress for private sector employees fired for Internet speech,22 the SCA may provide such an employee with a cause of action against his or her employer if it can be proven that (1) the employee purposely placed privacy settings on his or her social networking or blog website to allow access to the site for only a select group of the general public, rather than the public at-large,23 (2) the employer was not a member of the group granted such access by the employee,24 (3) the employer viewed the Internet posting without authorized access,25 and (4) the employer was not shown the posting by someone granted access to the employee's social networking or blog website.26

   First, this Note will explore how the courts have generally dealt with social networking and blogging disputes in both the public and private sectors.27 Second, this Note will analyze critiques of the courts' handling of these cases and survey alternative solutions. Third, this Note will discuss various cases interpreting the SCA and how those rulings could apply to an employer-employee Internet speech dispute. Fourth, this Note will examine two cases--Konop v. Hawaiian Airlines, Inc.28 and Pietrylo v. Hillstone Restaurant Group29--actually using the SCA to provide an employee a cause of action against his employer for retribution over the employee's Internet speech. Fifth, this Note will look at the principles established in Crispin v. Christian Audigier, Inc.,30 and explore whether the reasoning of Konop and Pietrylo can be extended to protect employee speech on social networking sites like MySpace and Facebook. Finally, this Note will conclude that while SCA protection for this type of Internet speech ultimately will be limited, the SCA provides the greatest protection to employees who place restrictive privacy settings on their social networking sites.

2. Background: Standard Approaches to Internet Speech Disputes in the Private and Public Sectors

   1. Public Sector (31)

      Government employees enjoy much stronger free speech protections because, unlike private sector employers, government employers are subject to the restraints of the U.S. Constitution. (32) The First Amendment (33) limits the ability of the government to discipline its employees for protected speech. (34) Garcetti v. Ceballos (35) sets out the most current test for determining whether an employee's speech garners First Amendment protection and insulates him or her from termination by a government employer. (36) First, the employee must prove that he spoke as a citizen--rather than in his capacity as a government worker--and that his speech involved a matter of public concern. (37) Next, a court must decide whether the government had a legitimate justification for not providing its employees with the same First Amendment protection it affords to normal private citizens. (38) Consequently, while this test provides public employees much more speech protection than private employees, the Court nevertheless recognizes that government employers have as much of a right as private employers to control, manage, and discipline their employees when their speech or actions adversely interfere with their job responsibilities. (39) In this aspect, at least, government and private employees tend to receive identical treatment from their respective employers if their employers can characterize the employee Internet speech as disruptive to the work environment. (40)

      Law regulating student Internet use provides some clues as to what constitutes punishable Internet speech in the employment context. For example, Synder v. Millersville University, (41) which discusses a student-university relationship, upheld a university's decision to deny a student teacher her education degree because of postings she made on her MySpace page during her student-teaching practicum. (42) Despite being told in her orientation not to name any students or teachers on her personal social networking pages, (43) the student teacher told her high school students about her MySpace page, (44) discussed students on her MySpace page, (45) posted inappropriate pictures of herself on the site, (46) and generally referred to her teaching supervisors in a negative context on her MySpace page. (47) These MySpace postings, in part, caused her host school to dismiss her from the practicum program, (48) which in turn caused the student's university to deny her an education degree. (49)

      Conversely, other student cases show how the First Amendment can insulate Internet speech from punishment. For instance, Evans v. Bayer (50) involved a principal suspending (51) a student for creating a group on Facebook called "Ms. Sarah Phelps is the worst teacher I've ever met." (52) The student sued the school to revoke her suspension and prevent the principal from keeping it on her permanent record, arguing that the principal's actions violated her First Amendment rights because she had "engaged in an off-campus activity in a non-violent and non-threatening public forum" when the speech in question occurred. (53) The court denied the principal-defendant's motion to dismiss, finding that the student's "actions cannot be construed as even remotely disruptive, nor was her speech in any way lewd, vulgar, defamatory, promoting drug use or violence as seen in other cases." (54) The court determined that while the Court's ruling in Tinker v. Des Moines Independent Community School District (55) allows schools to punish students for off-campus speech,56 the school potentially violated the student's First Amendment rights because (1) her off-campus speech did not cause on-campus disruptions, (57) (2) her speech in general "falls under the wide umbrella of protected [First Amendment] speech," (58) and (3) her right to engage in this type of speech was clearly established at the time of her punishment. (59) These factors enabled the student to pierce the principal's claim of qualified immunity...