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. Mr Smith, while most reading these posts are too busy making money or cranking out what passes for justice in our legal-techocrat order,I have often attempted to resist your cynicism, well thought out cynicism I admit. Please know that I give up, I can resist your logic no more. From Locknarian Platonic Guardians, through the incorporation doctine, to substantive due process, to Roe, to the latest demands that all states redefine the foundational stone of all civilized social order, the history of America's fall from Grace is inscribed on the dockets of the judiciary. From the federal judges' apostasy of a kind that would have caused John Jay to recommend capital punishment, to the state judges' refusal to protect the sanctuary of the state constitutions, seeing in them merely a font from which to protect pornographers, those who scream "f*ck the police" and pemubras and emanations following the federal apostates, it has been the judiciary, by and large, that has brought the Experiment in Ordered Liberty to an end. The Founders had great and high hopes that they had designed the third branch to save the Republic from such a time as this ... rather the third branch has allowed itself to be used to drag the Republic into rat infested sewers from which no nation has ever returned. Save me from tomorrow:

  2. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  3. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  4. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  5. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied