We’ve read a few examples recently of lawyers getting in trouble for what they post online: a lawyer disciplined for posts about a judge and another charged with revealing client confidences (here are other examples from the ABA journal and the NY Times). But it’s not just lawyers getting in trouble.
In an unreported opinion out of the Superior Court of New Jersey, Appellate Division, in early September (but just now showing up online on Lexis), the Court affirmed a decision in which a university police officer who posted a fake (and apparently nasty) profile of a female colleague on Facebook was permanently barred from holding any public office in New Jersey (under N.J. Stat. § 2C:51-2) [the decision is N.J. v. Mandi, 2009 N.J. Super. Unpub. LEXIS 2499 (September 9, 2009)]. The Court found that because the fake profile was of a co-worker (with whom the poster had previously had a relationship), and was made using a university computer while on the police officer was on duty, the officer could be fired and prevented from working in the N.J. public sector again.
According to the Court, the three facts (co-worker, university computer, university time) sufficiently involved or sufficiently touched upon his public office that permanent forfeiture of any future public employment was suitable:
[T]he statutory scheme is clear. Any person convicted of an offense, including a petty disorderly persons offense, as was defendant, is subject to forfeiture of his present position, and is permanently barred from future public employment, if the offense “involv[ed] or touch[ed] on his public office, position or employment.”
I assume the outcome would have been different had he posted the profile from home, using his own computer, but still created a fake profile about his co-worker ex-girlfriend. The Court’s analysis does not pose this as a hypothetical.
I have two things I want to raise (after the jump).
First, while N.J. Stat. § 2C:51-2 is not directed at speech, and while the punishment here followed the officer’s guilty plea to disorderly conduct (the Court refers to this as an amended charge, but does not discuss any other charges the officer faced), he is, in the end, subject to punishment because of his speech (the Court actually makes a point about the lack of evidence about why he plead guilty and what exactly he did that was the subject of his plea; that seems potentially critical to me in a scenario like this where the basis of the punishment seems to be speech based). I do not see any assertion of First Amendment rights here, and I’m not sure why that is (I’m not even quite sure how they got to the disorderly conduct charge). I’m not arguing that the First Amendment should shield his activity (I’m not a First Amendment absolutist), but simply that it appears odd that the argument appears not to have been made.
Second, this is another one of those cases that shows the potential negative effects of the Internet’s ability to amplify poor judgment. Prior to the Internet, this officer, angry and upset over how his relationship had turned out, would have bad-mouthed his ex-girlfriend to his friends. Perhaps he might have gone far enough so as to make it uncomfortable for her at work, but he would have probably had to really work at that (I’m not saying this is a far-fetched scenario, rather that he would have had to put in much more effort to get in trouble than he did in this ccase; that many spurned lovers will do just that doesn’t undo the claim that significant effort would have been required). He would have had to have made the decision each time that this was the course of conduct that he wanted to follow, and then he would have had to have acted on it. Each time, he might have met resistance (another colleague who told him to get over it, knock it off, stop being so petty), a supervisor who heard of what was going on and informally warned him, etc.. That is, his actions would have taken place in a social space, with cultures that could have (though not necessarily would have) given him the chance to think through whether he wanted to continue.
If he had changed his mind, he might have been able to tell all the people he had already told of his change in heart, or they might have seen it in his actions, as he would only have interacted with those near him and who would be likely to see him on an ongoing basis. He could have, at least theoretically, controlled the ultimate damage resulting from his poor behavior because they would have been limited in time and space.
Instead, in this case, one moment’s really poor judgment sticks. It results in real world effects that you cannot undo simply by wishing them away or apologizing for them. They go beyond your immediate circle of friends and co-workers, and they cannot easily be taken back. Because of this lapse in judgment, this particular person will likely be unable to follow the career path that he probably thought would keep him gainfully employed until retirement.
The Internet sometimes causes people to stop thinking and to just act, especially when they’re emotional; people really need to keep thinking, especially when it comes to things they do and say on the Internet. The results if they don’t may change their lives.
“Instead, in this case, one moment’s really poor judgment sticks.” This is something I’ve been mulling over the last year or so. We’re in a moment of transition, I think, in which standards of current behavior are being judged by the availability of evidence of pre-Internet behavior, to the detriment of current actors. But one possibility here (I’m not wedded to this) is that this isn’t such a bad long-term development, once the situation stabilizes. That is, is a lack of full transparency that someone can occasionally, temporarily, be a massive jerk something worth keeping? I can see my way to a conclusion that the answer to that is “no.”
What is remarkable about this is how unlikely the same outcome would have resulted from the officer shooting an unarmed bystander during an overheated traffic stop or drug raid. I wish it were this easy to fire bad cops all the time — how typically sad that we even have to go to court following the dismissal of a merely disturbed, intemperate and obnoxious armed officer of the law. I don’t know any teenagers who do this kind of thing, the fact that he dares to walk into court with his head high is insulting.
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