Facebook: Taking Out the Free in Free Expression
As so many warn (and warn to no avail), self-expression on social network sites can be costly. CBC News recently reported that an employer’s insurance company cut a Quebec employee’s long-term sick leave benefits after seeing photographs on the employee’s Facebook page. The employee had been on leave from her job at IBM for a year and a half after being diagnosed with major depression. The employee posted pictures of herself having a good time at a bar on her birthday and enjoying the beach while on vacation. The insurance company investigated the woman’s Facebook page after she told her insurer about her trip. The employee explained that her doctor advised her to have fun to combat the depression. But that apparently did little to convince the insurer that the employee still struggled with depression. This case demonstrates the problem of de-contextualization in our digital lives. A strong argument exists that the insurer took pictures out of context when terminating the woman’s benefits. This is just the kind of privacy problem that Dan Solove so astutely tackles in Understanding Privacy and urges a contextual, pragmatic approach to address it.
Not only do insurers (and employers) hold our Facebook musings against us, but government employers can as well. As Helen Norton‘s superb article Constraining Public Employee Speech: Government’s Control of its Workers’ Speech to Protect its Own Expression (59 Duke L.J. 1 (2009)) explores, government employees can be fired for off-duty online speech on the grounds that the public would associate the employee’s off-duty expression with the government entity that employed him. For instance, the Ninth Circuit rejected a First Amendment challenge by a police officer who had been fired for maintaining a sexually explicit website featuring his wife even though the website never referred to law enforcement generally or the plaintiff’s employment specifically. The court explained: “it can be seriously asked whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech (and other activities) entirely unrelated to that position in the eyes of the public and his superiors. . . . the sleazy activities [of plaintiff and his wife] could not help but undermine [the public's] respect” for the police department. Given the current state of First Amendment doctrine, it seems possible that government employers could fire employees for participating in Facebook groups with unpopular viewpoints on the grounds that such support would undermines the public’s respect for the particular government employer (the Facebook groups supporting Nazi ideology and Holocaust denial come to mind). Norton elegantly addresses the value of government speech and that of its employees and, like Solove, prefers a contextual approach that honors First Amendment values and employees’ expressive autonomy.
Hat tip: Raymond Cha