Blogs should be protected by First Amendment rights
By now, most people are aware that employers scour the Internet looking for information about their potential employees, but that does not seem to stop anyone from using social networking or blogging sites.
Recently, some lawyers have come under fire for their blog posts criticizing judges or revealing privileged information about a case. The authors of these posts are receiving disciplinary action, including fines and even a loss of the right to practice law.
While these two situations are different, and criticizing a judge in no way equates with revealing secret information about a case, the responses of the courts and the bar were extreme and seem to violate the First Amendment. A New York Times article discussing the issue states that because the criticisms were not aimed at a problem with the court system, they were not covered under the First Amendment, and it is stated that members of the court system (including lawyers and judges) lose their full right to criticize that system.
What seems strange to me is that there are not better protections under the First Amendment. Does working for the government mean you should never be able to criticize it? I don’t think so.
Dissatisfaction at work is nothing new, and as long as people have jobs, they will criticize them. Whether people complain through speaking or writing, their thoughts should be protected under the First Amendment. If an attorney thinks that a judge’s actions are unfair, he or she should have every right to criticize them, whether in a formal setting or in a blog.
Blogs are a form of journalism, and in journalism, it is perfectly legitimate to voice concerns as long as there is evidence to back it up; in one of the cases in the New York Times article, an attorney complained that the judge in question gave defense attorneys three fewer weeks to prepare their cases than other judges. This is a substantiated claim, and there is no reason to say that this should not be protected under the First Amendment.
This is not to say, however, that everything should be protected under the First Amendment, as in the case of the attorney who blogged about her cases.
Attorneys, much like doctors, are required to keep information told to them by their clients private. Anything said behind closed doors should never be revealed, except by the person whose secrets they are to tell. That means that they should not be revealed in blogs.
Blogs are a great means of expressing one’s thoughts, but they should not be used to give away information that should be kept secret. In addition, opinions about whether clients are guilty or innocent should not be written in blogs; these sorts of mistakes can lead to problems and repercussions for clients.
It is important to remember that while our freedom of speech allows us to say many things, some things, like other people’s secrets, should be left unsaid and unwritten.
This is not the case for complaints about employers or coworkers, however, and these things should be protected under the First Amendment as long as they do not contain false information. Revealing true information that can be backed up by facts is one thing; making up information just to make someone look bad is another thing entirely.
Until the government passes legislation forbidding employers to use things that employees — or potential employees — say or write against them, however, the best thing to do is not to post anything online that they would not want to see on the front page of a newspaper — or at least add some kind of protection to limit who can see it.