Facebook: Taking Out the Free in Free Expression
posted by Danielle Citron
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 diag
nosed 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
November 30, 2009 at 4:12 pm
Posted in: First Amendment, Privacy, Privacy (Consumer Privacy), Privacy (Gossip & Shaming), Privacy (Medical), Technology, Uncategorized
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Responses (1)
Confused 2(now 3)L - December 2, 2009 at 12:00 pm
This raises the question of what exactly does “free” in this context mean. I’ve always thought that freedom of expression is solely intended to mean freedom from restraint and Governmental sanction. Putting aside for the moment the argument over whether the government acting as employer is equivalent to the Government acting as the agent of The People, I don’t think that freedom of expression was ever intended, or should be currently understood, to mean that one is protected from any repercussions arising from ones actions, when those actions are the decision to speak.
How is the decision of the insurance company different from a decision to terminate benefits based on a contrary physicians report? Or the hiring of an private investigator to look into claims that a person with a physical injury but who is playing beer-league softball? Granted depression is a much more complicated concern, it expresses inconsistently and in ways that aren’t obvious to an outside observer, but that means at worst the evidence relied on by the insurer was insufficient, not that they were wrong to look into the public actions of the claimant.
Were the insurers actions invasive, yes. As would be the requirement to see an outside doctor, as would be interviewing associates of the claimant to verify the claim, as would be a number of other activities that the law and most people would acknowledge the insurer has the right to do.
On the other hand, none of this should imply that I disagree with the viewpoint that the law needs to be brought into agreement with changing technology and modern requirements and beliefs.
JMS
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