People use social media networks such as Facebook and Twitter to share many of their thoughts. Although many times social media posts are celebratory, reflective, or simply funny, sometimes they take a negative, critical, or vulgar tone. In these instances, the subject of the post may become offended or may even retaliate against the person who made the post. The question this raises, however, is whether or not retaliation in response to a social media post is legal, particularly in an employment or educational setting.
One New Jersey student has recently filed a lawsuit against her school district after she claims that she was retaliated against for a negative post she made on Twitter. In the post, the student referred to her school’s principal with a slew of vulgarities. Following the post, the student claims that she became the subject of increased disciplinary scrutiny, that the school retaliated against her by targeting her for violations of the school’s drug policy, and that she has been banned from school events such as her senior prom. The lawsuit further alleges that the retaliation was partially based on the student’s behavioral disorder. The suit seeks unspecified damages for the alleged retaliation.
With regards to discrimination and retaliation, the educational context is similar to an employment setting. In employment law, courts are currently unclear as to whether comments made on social media are a form of protected speech. Although the Eleventh Circuit has ruled that statements made on Facebook are not protected speech (Gresham v. City of Atlanta, 2013 U.S. App. LEXIS 20961 (11th Cir. Oct. 17, 2013)), cases from the Fourth Circuit have ruled that “liking” a post on Facebook is protected speech (Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013)), and a New Jersey court has held that non-public Facebook posts and messages are both protected by the Federal Stored Communications Act (Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (D.N.J. Aug 20, 2013)).
This case may serve as clarification regarding New Jersey’s stance on protected speech on social media in employment and educational settings. It will be interesting to see how the court rules, and the outcome of this case may have a significant impact on what, when, and where, employees and students may post on their social media pages.