Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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The Supreme Court’s 1968 decision in <a href="http://scholar.google.com/scholar_case?case=16997195768089298466">Pickering v. Board of Education</a> allows governmental employers, including law enforcement agencies, to fire or discipline employees for disrupting operations with excessive complaining, but it prohibits governmental employers from firing or disciplining an employee for speaking out on matters of public concern as a private citizen if the employee’s interest in speaking outweighs the agency’s interest in maintaining efficiency. While the line between disruptively complaining and responsibly speaking out may be clear enough in theory, however, it is often difficult to draw in practice, particularly when the employees in question work in law enforcement. The most recent case to dive into this thicket is <a href="https://caselaw.findlaw.com/us-5th-circuit/1689399.html">Graziosi v. City of Greenville</a>, from the Northern District of Mississippi.We <a href="https://www.sociallyawareblog.com/2013/12/05/two-circuits-address-the-first-amendment-status-of-facebook-activity/">previously discussed</a> the First Amendment rights of law enforcement personnel in connection with the Eleventh Circuit case <a href="https://law.justia.com/cases/federal/appellate-courts/ca11/12-12968/12-12968-2013-10-17.html">Gresham v. City of Atlanta</a>. In Gresham, the plaintiff was passed over for a promotion after making a Facebook post critical of what she saw as obstruction of justice by a fellow officer.  The court held that the plaintiff had spoken on a matter of public concern, but that her interest in speaking did not outweigh the government’s interest in promoting efficiency.  The key point was that the plaintiff had configured her Facebook post to be viewable only by her friends, which indicated that her post was not “calculated to bring an issue of public concern to the attention of persons with authority to make corrections . . . the context was more nearly one of Plaintiff’s venting her frustration with her superiors.”The decision in Graziosi deals with the same elusive line between mere complaining on the one hand, and alerting the public to important information about the operations of government agencies on the other.  A member of the Greenville Police Department, Sergeant Graziosi, made a series of public Facebook posts criticizing the chief of police for failing to send a representative to the funeral of a fellow officer.  Graziosi posted these complaints first as her own Facebook status update, and then posted them on the campaign page of the local mayor.  The chief of police fired Graziosi for making the posts, which the chief of police contended violated several internal police department policies that forbid public criticism and excessive complaining by officers.  Graziosi filed a lawsuit alleging that her termination violated the First Amendment.One pivotal issue in the case was whether the criticisms Graziosi posted on Facebook qualified as speaking out on a matter of public concern as a private citizen.  Graziosi argued that a decision about whether or not to send police officers to a funeral is inherently a matter of public concern because it involves the spending of public funds.  However, the court noted that if anything that involved spending funds was a matter of public concern, then “almost anything” would satisfy that requirement of the Pickering test.  Instead, the court looked to the primary motivation for speaking.  The court determined that “Graziosi’s comments to the Mayor, although on a sensitive subject, were more related to her own frustration of Chief Cannon’s decision not to send officers to the funeral and were not made to expose unlawful conduct within the Greenville Police Department.  Her posts were not intended to help the public actually evaluate the performance of the GPD.”  The court found that Graziosi was speaking out about a matter that was primarily internal to the police department, and hence, she was speaking not as a citizen, but as an employee, and not on a matter of public concern, but on a matter of personal concern.  Therefore, her comments did not pass the threshold requirement of the Pickering test.This decision is similar to the decision in Gresham, but differs in important ways.  In both cases, the complaints that a law enforcement officer posted on Facebook were denied First Amendment protection because those complaints were more fairly described as venting frustrations than as attempts to get important information to the public.  In both cases, the court found that although the topic of the speech was of at least some concern to the public, the speaker was primarily motivated by a desire to vent frustration.  In Gresham, the court made this determination by considering the audience that the plaintiff spoke to; in Graziosi, the court made this determination by considering what the plaintiff spoke about.  However, the courts applied the determination that the speaker was motivated primarily by a desire to vent at different steps in the analysis.  In Gresham, the court found that the plaintiff’s interest in complaining was less weighty than the interest of the police department in preserving efficiency.  However, in Graziosi, the court found that the plaintiff’s primary purpose of venting personal grievances defeated her claim before the weighing stage was even reached.  Because the plaintiff’s intent was primarily to vent frustration, she was not speaking as a private citizen or speaking on a matter of public concern, and hence would not have been eligible for First Amendment protection even if her interest had outweighed the interest of the police department.Viewed in the light of recent high profile situations involving governmental employees speaking out about matters of public concern contrary to applicable governmental policies, such as the leaks by <a href="http://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance">Edward Snowden</a> and <a href="http://blogs.wsj.com/washwire/2013/08/21/what-bradley-manning-leaked/">Chelsea (formerly Bradley) Manning</a>, clarifying the rules in this area is more important than ever.  And the fact that so much of the relevant communication now takes place in the diverse and always-changing world of social media only increases the complexity of the issues.  As a result, we can expect that the courts will continue to develop the law in this area for many years, but the outline of how the First Amendment applies to governmental employees using social media is at least beginning to take shape.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Refining the First Amendment Status of Social Media Activity by Government Employees