First Amendment Law
Taking the Heat for a Tweet
A Look at Lawyers, the First Amendment, and Social Media.
By John G. Browning
Your hands glide over the keyboard as you post a comment here, a
“like” or share there. Checking your Twitter feed, you scroll until
something catches your interest and you decide to enter the online
conversation with a tweet of your own, or maybe a retweet. Perhaps the
topic du jour is something you’ve seen in the news. You do this in the
shadow of that Texas Bar license hanging on the wall, secure in the
knowledge that you enjoy just as much First Amendment protection as
anyone else does.
But as many lawyers (and even judges) are finding out nowadays, that
doesn’t mean there won’t be consequences professionally. Just because
you can air your innermost thoughts on Facebook or Twitter doesn’t mean
you should, especially when one considers not just the potential
backlash from the general public, but also from colleagues, clients, and
even disciplinary authorities.
Consider some recent examples. In December 2017, Andrew Leonie, an
associate deputy attorney general to Attorney General Ken Paxton, wrote
a Facebook post critical of the #MeToo movement, stating “Aren’t you
also tired of all of the pathetic ‘me too’ victim claims? If every woman
is a ‘victim,’ so is every man. If everyone is a victim, no one is.
Victim means nothing anymore.” He also linked to an article about how
women purportedly “want” to be objectified.1 The response
from members of the public and the media was swift, condemning the
remarks. The Texas Attorney General’s Office responded quickly as well.
A spokesperson for the office announced within several hours of the
media reports that Leonie had resigned “effective immediately,” and that
the “views he expressed on social media do not reflect our
values.”2
In September 2017, Austin-based attorney Robert Ranco used his Twitter
account to express his anger over Secretary of Education Betsy DeVos’
decision to revamp certain Obama administration Title IX guidelines on
the investigation of on-campus sexual assault claims. Asserting that the
move was “bad for young women,” he tweeted that he’d “be ok if
#BetsyDeVos was sexually assaulted.”3 A firestorm quickly
ensued, prompting Ranco to delete his Twitter account but not before
acknowledging that his words “were harsh,” while insisting that “I don’t
wish harm on anyone.”4 He later apologized, telling the media
that his tweet “was a mistake” and that “I take full responsibility
[for] it.”5 However, that wasn’t sufficient for his employer,
the Carlson Law Firm. The firm announced the same day as Ranco’s apology
that he had resigned and released a statement that said given the firm’s
makeup (75 percent of its employees are women), “anyone in our company
advocating or even expressing apathy towards sexual assault is [an]
affront to all victims and a line that simply cannot be
uncrossed.”6
And in October 2017, a senior in-house lawyer at CBS posted
insensitive comments on Facebook in the aftermath of the Las Vegas mass
shooting. Vice president and senior counsel Hayley Geftman-Gold
proclaimed that she was “actually not even sympathetic” because “country
music fans often are Republican gun toters.” She also referred to
Republicans as “Repugs” who “wouldn’t do anything when children were
murdered.”7 A screenshot of her post identifies Geftman-Gold as vice
president and senior counsel of strategic transactions at CBS and former
Big Law attorney. The response from CBS was quick and decisive.
Geftman-Gold was fired, and the network issued a statement saying that
she had “violated the standards of our company” and that “Her views as
expressed on social media are deeply unacceptable to all of us at
CBS.”8
But losing a prestigious job and being at the epicenter of a
high-profile controversy were just the beginning for Geftman-Gold. A
group called Citizens for Judicial Reform initiated an online petition
calling for the New York State Bar Association to take professional
disciplinary actions against Geftman-Gold over her “reprehensible and
despicable remarks,” questioning whether she was capable of remaining
professional in response to a national tragedy. Within just days, the
petition had over 12,000 signatures.9
Speaking out on social media can also have grave consequences when
it’s perceived as an attempt to influence a case. In January 2018, a
Philadelphia County Court of Common Pleas judge punished two lawyers who
had represented the plaintiff in a December 2017 trial over the
medication Xarelto. The two lawyers, Ned McWilliams of Pensacola,
Florida, and Emily Jeffcott of New Orleans, had posted a photograph of
the courtroom on Instagram with the hashtag “#killinnazis” (a reference
to both the Quentin Tarantino movie Inglourious Basterds and
Germany-based Bayer, the co-developer of Xarelto).10
Post-trial motions by the defense had argued that the plaintiff’s
counsel’s social media posts were intended to create a link in the minds
of the jurors between the German pharmaceutical company and Nazi
Germany, calling it a “xenophobic” strategy. The court issued a judgment
notwithstanding the verdict and set aside the $27.8 million verdict (on
grounds unrelated to the social media posts). It also revoked the pro
hac vice admission of McWilliams and sanctioned Jeffcott $2,500 and
ordered her to perform 25 hours of community service. The judge noted
that the Instagram posts in question and the #killinnazis hashtag (which
Jeffcott’s firm subsequently used in promotional materials) were “well
beneath the dignity of the legal profession.”11
In fact, even when you win in the courtroom, your social media posts
can turn it into a pyrrhic victory. For example, in 2016 British lawyer
Mark Small went on Twitter to celebrate a win for a local government
client in a case brought by the parents of a disabled child (Small’s
firm had a niche practice of defending such entities in suits seeking
additional benefits and accommodations). His tweets, characterized as
“insensitive,” resulted in a publicity nightmare. The controversy was
too much for many of Small’s clients, half of whom terminated the firm’s
representation or elected not to renew their contracts.12
Beyond negative publicity, loss of employment, and loss of clients,
lawyers’ expressing themselves on social media can have ethical
consequences as well. In November 2016, the District of Columbia Bar
Legal Ethics Committee became the first in the country to address the
risk of creating positional conflicts when blogging, posting, or
tweeting about legal developments or even news.13 When a
lawyer advances one position online but is called upon to argue the
opposite on a client’s behalf, a positional conflict exists. For
example, a lawyer whose firm represents the National Rifle Association
or a firearms manufacturer might be seen as having taken a position
contrary to her client if she sent a tweet deploring the proliferation
of guns.
Even judges aren’t immune to the siren song of social media and have
borne the professional consequences that followed their speech. In
August 2017, Gwinnett County, Georgia, Judge Jim Hinkle posted his
reaction to those protesting against Confederate monuments, calling them
“nut cases” and “snowflakes” who “are equivalent to ISIS destroying
history.”14 Although Judge Hinkle said he didn’t “see anything
controversial” about his posts, he was suspended by the chief magistrate
judge soon after making them, and he resigned a day later. In May 2017,
Orange County, California, Superior Court Judge Jeff Ferguson was
publicly admonished by the state’s Commission on Judicial Performance
over a post he had made on Facebook. The commission found that Judge
Ferguson’s “reckless” allegations that a prosecutor (and judicial
candidate) was sleeping with a defense attorney whose cases she was
overseeing “undermined public respect for the judiciary and all the
integrity of the electoral process.”15
Another factor that lawyers need to consider before expressing what
they feel online is whether or not the firm, company, or governmental
agency they work for has a social media policy or internet usage policy
covering such online statements. Such policies have become commonplace
in light of digital age concerns about online sharing of confidential
information or trade secrets as well as the risk of an employer being
viewed negatively thanks to its employee’s internet conduct. In 2016,
Florida prosecutor Kenneth Lewis was fired after he posted controversial
comments in the wake of the Orlando nightclub mass shooting, calling
such establishments “utter cesspools of debauchery” and calling the city
a “melting pot of third world miscreants and ghetto thugs.” Lewis was
terminated for violating his office’s social media policy, having
received a warning over a previous post.16
Lawyers need to be mindful that they face heightened public and
ethical scrutiny when they express opinions online or on social media
platforms. Lawyers also need to remember not only the speed with which
our wired world reacts and the ubiquitous nature of social media, but
also the fact that the same ethical rules that apply to every other form
of communication similarly apply to social networking platforms. If you
wouldn’t put it in a letter or publish it in a newspaper, don’t post it
on Facebook or tweet about it. TBJ
JOHN G. BROWNING
is a partner in Passman & Jones in Dallas, where he handles
commercial litigation, employment, health care, and personal injury
defense matters in state and federal courts. He is an award-winning
legal journalist for his syndicated column, “Legally Speaking,” and is
the author of the Social Media and Litigation Practice Guide
and a forthcoming casebook on social media and the law. He is an adjunct
professor at Southern Methodist University Dedman School of Law.