In a recent decision, the Minnesota Court of Appeals has added to the growing body of case law regarding social media, and Facebook in particular. The case, Tatro v. University of Minnesota, has implications not only for students of public universities and free speech in general, but also for employers who wish to place limits on employees’ social media usage.
The case involves a young lady named Amanda Tatro. Ms. Tatro is a student in the mortuary-science program at the University of Minnesota. Part of the program involves laboratory work on cadavers which are donated to the University through an anatomy-bequest program. Prior to taking her laboratory course, Ms. Tatro participated in an orientation program which addressed appropriate conduct with respect to the cadavers, and she signed a disclosure form at the conclusion of the orientation indicating that she understood and agreed to abide by the program rules.
In November and December of 2009, Ms. Tatro posted several times on her personal Facebook page regarding her lab work on cadavers. Here’s a rundown of these posts:
Amanda Beth Tatro Gets to play, I mean dissect, Bernie (note: “Bernie” was the name given the cadaver by Ms. Tatro, apparently as an homage to Weekend at Bernie’s) today. Let’s see if I can have a lab void of reprimanding and having my scalpel taken away. Perhaps if I just hide it in my sleeve…
Amanda Beth Tatro Is looking forward to Monday’s embalming therapy as well as a rumored opportunity to aspirate. Give me room, lots of aggression to be taken out with a trocar.
Amanda Beth Tatro Who knew embalming lab was so cathartic! I still want to stab a certain someone in the throat with a trocar though. Hmm..perhaps I will spend the evening updating my “Death List #5” and making friends with the crematory guy. I do know the code….
Amanda Beth Tatro Realized with great sadness that my best friend, Bernie, will no longer be with me as of Friday next week. I wish to accompany him to the retort. Now where will I go or who will I hang with when I need to gather my sanity? Bye, bye Bernie. Lock of hair in my pocket.
Apparently, the “certain someone” was someone who had recently broken up with Ms. Tatro and she wrote the post intending for him to read it. Nonetheless, other students and faculty in the program felt that the post could be intended for them.
Not surprisingly, fellow students who viewed these posts informed University authorities, who contacted the local police. Although no criminal charges resulted, the University’s office for student conduct and academic integrity submitted a formal case against Tatro, alleging various violations of the University’s student conduct code (including engaging in threatening, harassing, or assaultive conduct as well as violations of the anatomy-laboratory course rules). After a hearing, the University issued a series of sanctions against Ms. Tatro, including issuing her a failing grade in the course, requiring her to enroll in a clinical ethics course and complete a psychiatric evaluation.
Predictably, Ms. Tatro appealed. Her primary arguments were (1) she was merely venting in her Facebook posts and they shouldn’t be taken seriously; (2) she was off-campus at the time she posted the comments on Facebook; and (3) the posts were protected speech.
The Court of Appeals found none of these arguments to be persuasive. As to Ms. Tatro’s claim that she was merely venting, the Court said:
Whether or not Tatro intended her posts to be satire or mere venting does not diminish the university’s substantial interest in protecting the safety of its students and faculty and addressing potentially threatening conduct. Indeed, the realities of our time require that our schools and universities be vigilant in watching for and responding to student behavior that indicates a potential for violence.
As to Ms. Tatro’s argument that she was beyond the reach of the University’s code of conduct because she was off-campus at the time of her posts, the Court said:
The code expressly authorizes the university to apply the code to students whose alleged off-campus conduct has an adverse effect on a substantial university interest and indicates potential danger or threat to the student or others.
Finally, as to Ms. Tatro’s argument that the posts were protected speech, the Court cited a long line of cases beginning with Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969) which recognize that schools may limit or discipline student expression if school officials “reasonably conclude that it will ‘materially and substantially disrupt the work and discipline of the school’”
Strike three, and Ms. Tatro’s appeal is out.
One interesting sidenote to the case has to do with a rule which provided that:
“Conversational language of cadaver dissection outside the laboratory should be respectful and discreet. Blogging about the anatomy lab or the cadaver dissection is not allowable.”
Ms. Tatro argued that Facebook posts do not equate to blogging. On this point, the Court agreed. However, the Court went on to state that Facebook posts did rise to the level of “conversational language” and that Ms. Tatro’s posts were anything but respectful and discreet.
While the Minnesota Supreme Court could conceivably hear an appeal from the Court of Appeals’ decision, until it does, the Court of Appeals’ decision is the law in Minnesota.
So what does the Tatro case mean for the rest of us? First, for employers, the benefit of having a written policy (either separate or as part of an employee handbook) regarding employees’ social media usage and having them sign an acknowledgment as to receipt and understanding of the policy will go a long way when an issue arises involving an employee’s improper online conduct. For students of public universities, Tatro emphasizes that “anything goes” is not the rule when it comes to student speech; rather, the school does have some degree of discretion in limiting certain types of speech. For the rest of us, the Tatro case is a reminder that there are limits to what can or should be said online. I’ve seen my share of snarky, biting posts or tweets during my time using social media (heck, I’ve even had my own share of them), but there are limits to what you can say, and a healthy does of self-regulation will go a long way to keeping oneself out of trouble.