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Courts limiting workers' online conduct

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Two new policies instituted in Indiana courts in recent months restrict how court employees may use social media in the workplace and when they are off-the-clock. Some question whether this could raise issues of free speech.

In August, Delaware County’s five Circuit courts issued a new social media policy with broad limits on court employees’ rights to communicate online, even at home. The policy prohibits all court employees from making any posts about anything related to their jobs.

“As a condition of employment, each court employee agrees to complete confidentiality of the workplace ... ,” the policy states. “Therefore, even outside the workplace, no employee shall discuss or reveal on a social network any information related to a judge, co-worker, parties before the court, attorneys who appear before the court, local law enforcement officials, and/or any information obtained through the employee’s observation of and/or work with the court.”

The policy bans employees from accessing non-business-related social media sites or the Internet for personal use during work hours including text messaging and answering non-work-related emails from personal phones or devices. Employees are also prohibited from making any comments about other court employees in public forums that “are negative ... or might be perceived as negative.” Lastly, after leaving court employment, former employees must still “uphold the independence, integrity and impartiality” of the courts and “should not reveal to third parties any observations made as a (court) employee.”

Additionally, the new policy also warns employees against revealing that they don’t “maintain a prudent and judicious lifestyle.” Specifically, it prohibits personnel from posting photos of any employees – no matter the time or location – in an “intoxicated condition,” because the judges found that to be improper and conflicts with the judiciary’s regular docket of cases involving alcohol abuse offenses.

Violations of the policy will result in a verbal warning, followed by a written warning, and possibly eventual termination, the policy states.

Delaware Circuit Judge Marianne Vorhees said she wanted to adopt a policy after attending the 2010 state judicial conference and hearing about “all kinds of issues” arising from social networking by court employees, including judges. Marion County had crafted a similar policy about that time, and Vorhees said she used a sample to help draft this policy for the Muncie-area courts.

The Delaware Circuit judges had previously discussed issues surrounding social media use, following a local newspaper report that Facebook was the number one Internet site accessed by county government workers during a week. They also looked to how other states, such as New York, North Carolina and Florida have weaved these types of policies into their judicial rules.

“These are concerns out there, and we thought it would be good to have a policy that lets our county employees know that they’re being paid by taxpayers to work for the court and not update their Facebook pages,” Vorhees said.

About the same time, the Southern District of Indiana signed a policy similar to the Delaware County document. The policy prohibits that social media use during work hours and bans employees from discussing work-related responsibilities or issues online or identifying themselves as a member of a particular judicial or court staff. It does allow employees to use general titles such as law clerk or administrative assistant. An aspect of the policy also states employees must “avoid negative commentary regarding the court,” and they should include a disclaimer saying views expressed are personal views if anything posted reveals a connection to the court.

“This is a new aspect of our court culture, because the young staff we have see this as part of their fabric now,” Chief Judge Richard Young said. “Posting personal information and sharing everything at all hours is the way things are. We have to make sure that we address this in jury trials where we have pattern instructions or in the court offices as a workplace.”

This concept of regulating workplace online communications isn’t a foreign idea for those in Indiana’s legal community. An Indiana deputy attorney general lost his job in February after commenting online that authorities should use “live ammunition” to run off protesters rallying about union collective bargaining in Wisconsin. He made the comment in a Twitter response on a Saturday evening, and within days he was disciplined by his superiors.

“Civility and courtesy toward all members of the public are very important to the Indiana Attorney General’s Office,” the Indiana AG said in a prepared statement. “We respect individuals’ First Amendment right to express their personal views on private online forums, but as public servants we are held by the public to a higher standard, and we should strive for civility.”

But some wonder if these types of policies go too far and infringe on employees’ private lives and free speech rights. Reports circulated after the new Delaware County policy took effect that complaints were filed with the American Civil Liberties Union of Indiana and Indiana’s Judicial Qualifications Commission, but any allegations or investigations aren’t public.

The National Labor Relations Board has been looking into questions surrounding employer-imposed limitations on what employees can say about work online. The NLRB’s enforcement office has found some of the comments made in violation of workplace policies were legally protected because individuals were expressing concerns about the terms and conditions of a job, but there’s some confusion about where the line exists. Federal law permits employees to talk with co-workers without reprisal no matter where that discussion happens. One NLRB case shows that an employee at an undisclosed Indiana emergency transportation and fire protection company was fired after writing on the Facebook wall of Sen. Richard Lugar, R-Indiana, to complain about skimping on wages and saying that her employer was endangering quality of care. The NLRB declined to take the case on the grounds that the employee didn’t discuss complaints with workers or show any attempt to work with management first.

Terre Haute attorney Jim Bopp, who frequently handles cases involving constitutional free speech matters, sees a problem with these types of social media policies at the government level. While they would be allowed for private companies, that’s not the case for public employees, he said.

“The First Amendment says that employees have the right to speak in public about matters of public concern,” he said. “I haven’t seen this come up before, but I could see it arising if someone posted something like they were concerned about the court or sheriff’s policy on transporting prisoners and then that person is punished.”

At the judicial level, Vorhees disagrees with any free speech arguments. She has read and reread the policy searching for those implications but hasn’t been able to find what might be a concern. The policy doesn’t say you can’t tell an anecdote or funny story about something that happens in a public court setting or something similar, Vorhees said, but goes at the heart of confidentiality on certain internal court matters.

“I disagree with that notion that we’re taking employees’ rights of free speech away,” she said. “We just want to make sure our employees are doing their jobs and that they understand and value the confidentiality of our courts.”•

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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