Employee’s Facebook status update was protected by the First Amendment

Mattingly v. Milligan, 2011 WL 5184283 (E.D.Ark. November 1, 2011)

Plaintiff worked in the county clerk’s office. Her old boss, whom she had supported in the election, lost. Her new boss (the newly-elected county clerk) began cleaning house and laid off some of the staff. Plaintiff survived that round of cuts, but lamented those terminations in a Facebook status update. Empathetic comments from county residents ensued.

The new boss found out about the status update and the comments. So he fired plaintiff. She sued, alleging that the termination violated her right to free speech. The boss moved for summary judgment, but the court denied the motion, sending the case to trial.

Here is some of the relevant Facebook content:

Plaintiff’s status update: So this week not going so good bad stuff all around.

Friend’s comment: Will be praying. Speak over those bad things positively.

Plaintiff’s comment: I am trying my heart goes out to the ladies in my office that were told by letter they were no longer needed…. It’s sad.

* * *

Friend’s comment: He’s making a mistake, but I knew he would, too bad….

* * *

Friend’s comment: I can’t believe a letter would be the manner of delivering such a message! I’m with the others…they will find some thing better and tell them this is an opportunity and not a closed door. Prayers for you and friends.

* * *

Friend’s comment: How could you expect anything else from [defendant], he was an…well nevermind.

Courts addressing claims by public employees who contend that they have been discharged for exercising their right to free speech must employ a two-step inquiry: First, the court must determine whether the speech may be described as “speech on a matter of public concern.” If so, the second step involves balancing the employee’s right to free speech against the interests of the public employer.

In this case, the court found the speech to be on a matter of public concern because:

  • the statements were made in a “public domain”
  • those who saw the statements (many of whom were residents of the county) understood them to be about terminations in the clerk’s office
  • some of the comments contained criticism of the termination decision
  • six constituents of the new clerk called his office to complain
  • the press and media had covered the situation

As for the second step in the analysis, namely, balancing the employee’s right to free speech against the interests of the public employer, the court did not even undertake a balancing test, as there simply was no evidence that the status update and the comments disrupted the operations of the clerk’s office.

Online threats made by blogger were not protected by the First Amendment

State v. Turner, 2011 WL 4424754 (Conn. Super. September 6, 2011)

A Connecticut state court held that prosecuting a blogger for posting content online encouraging others to use violence did not violate the blogger’s First Amendment right to free speech.

Defendant was charged under a Connecticut statute prohibiting individuals from “inciting injury to persons or property.” Angry about a bill in the state General Assembly that would have removed financial oversight of Catholic parishes from priests and bishops, defendant posted the following statements to his blog:

  • [T]he Founding Fathers gave us the tools necessary to resolve [this] tyranny: The Second Amendment
  • [My organization] advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON [my radio show], we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of [a state ethics officer].
  • These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.
  • If any state attorney, police department or court thinks they’re going to get uppity with us about this, I suspect we have enough bullets to put them down too

Defendant challenged the application of the state statute as unconstitutional. The court disagreed, finding there to be “little dispute that the defendant’s message explicitly advocate[ed] using violence.” Moreover, the court found the threatened violence to be “imminent and likely.” The blog content said that the home address of the legislators and government officials would be released the following day.

Though the court did not find that a substantial number of persons would actually take up arms, it did note, in a nod to 9/11, “the devastation that religious fanaticism can produce in this country.” As such, there was a sufficient basis to say that defendant’s vitriolic language had a substantial capacity to propel action to kill or injure a person.

Video game maker scores First Amendment win in right of publicity case

Hart v. Electronic Arts, Inc. — F.Supp.2d —, 2011 WL 4005350 (D.N.J. September 9, 2011)

Former Rutgers quarterback Ryan Hart sued Electronic Arts (“EA”), the maker of the very popular video game NCAA Football, alleging misappropriation of his right of publicity under New Jersey law.

EA moved to dismiss. Treating the filing as one for summary judgment, the court granted the motion. It held that EA’s right to free expression under the First Amendment outweighed Hart’s right of publicity.

The court recognized the tension between Hart’s right of publicity and EA’s free speech interest in seeking to incorporate Hart’s characteristics and other information about him into the game. The resolution of this tension is an unsettled area of the law — and the court no doubt recognized this. So in what appears to be an effort to reduce the likelihood that the appellate court will reverse, the judge applied two different tests, finding that EA’s First Amendment interests prevailed under both of them.

Hart’s claims

Hart claimed that the game misappropriated his right of publicity by, among other things, giving a virtual player of the game Hart’s physical attributes (including appearance, height and weight), the same jersey number, the same home state, and with wearing a helmet visor and left wrist band. Hart claimed the virtual player shared other features with him as well, such as speed and agility rating, and passing accuracy and arm strength.

Transformative test

The court first applied the “transformative test” to balance the right of publicity and First Amendment interests. This test borrows heavily from copyright law’s fair use analysis, and looks to the extra elements in the subsequent work. A court will look at:

whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question

In this case, the game included numerous creative elements apart from Hart’s image, such as virtual stadiums, athletes, coaches, fans, sound effects, music and commentary. Moreover, and perhaps more importantly, the court emphasized that EA created a mechanism in the game “by which the virual player may be altered, as well as the multiple permutations available for each virtual player image.”

The Rogers test

The Rogers test borrows from the trademark context to aid a court in determining whether First Amendment interests will trump a right of publicity claim. In applying this test, a court will make two queries: (a) whether the challenged work is wholly unrelated to the underlying work (or person asserting the claim), and (b) whether the use of the plaintiff’s name is a disguised commercial advertisement. In this case, the court found that one could not reasonably argue that Hart’s image was wholly unrelated to the game (it was college football, after all). But the use of Hart’s image was not a “disguised commercial advertisement.” Instead, the use of his image was part of an expressive act by EA that might draw upon public familiarity with Hart’s college football career but did not explicitly state that he endorsed or contributed to the creation of the game.

District judge stays magistrate’s order requiring identification of anonymous defendants

This is a post by Jonathan Rogers. Jon is a licensed attorney in California, with a focus on technology and entertainment law. You can reach him by email at jon@jonarogers.com or follow him on Twitter at @jonarogers.

Faconnable USA Corp. v. Doe, Slip Copy, 2011 WL 2173736 (D.Colo., Jun 2, 2011)

Faconnable issued a subpoena duces tecum to Skybeam, an Internet Service Provider, requesting identifying information about the users associated with two different IP addresses. A magistrate judge denied Skybeam’s motion for protective order, and required Skybeam to provide the requested information. Skybeam sought review of the denial of the protective order with the district court, asking for a stay of the magistrate’s order requiring the disclosure of the information. The court granted the motion to stay.

The court looked at four factors to determine whether it was appropriate to issue a stay against providing the information.

  • the likelihood of success on appeal (to the district judge)
  • the threat of irreparable harm if the stay or injunction is not granted
  • the absence of harm to opposing parties if the stay or injunction is granted
  • any risk of harm to the public interest

The court noted that if the last three factors are in a moving party’s favor, the first factor of likelihood of success is given less importance.

The court determined that if the stay were denied, the ISP would have to disclose the Does’ identities, which could impact their First Amendment interests to speak anonymously. However, if the stay were allowed, the ISP could preserve the information for production later, the only harm being a possible delay for Faconnable’s suit.

The court found that, on balance, the risk of losing First Amendment freedoms was a greater harm than delayed litigation.

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