Minnesota has its first Facebook decision –Tatro v. University of Minnesota. Admittedly, the case involves a student at the University of Minnesota. – not an employee. So why, you ask, am I interested in the decision? Short answer – it is a court decision about Facebook! Longer answer – it provides insight into how disrespectful, inappropriate and, in this case, threatening Facebook posts will be addressed by our courts.
I will be writing two posts which discuss the case. This post will focus on the background of the Tatro decision and what I gleaned as important points from the case. My next post will address how those facts and legal issues impact employee/employer relationships.
So let’s take a look at the facts of the case. Tatro was a mortuary science student. While taking a laboratory course, Tatro named her cadaver Bernie (referring to the film Weekend at Bernie’s), and posted the following:
- Amanda Beth Tatro Gets to play, I mean dissect, Bernie today. Lets 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.
(Emphasis added.) Tatro’s Facebook settings allowed her “friends” and “friends of friends” to view her posts, including several classmates. Without surprise, another student reported concerns about Tatro’s Facebook posts to the University. The University has a code of conduct as well as classroom rules, which Tatro received, acknowledged and agreed to abide by. The University concluded that Tatro’s posts violated those rules and the code of conduct, which led to a formal complaint, evidentiary hearing and internal appeal. Tatro lost, and then appealed to the Court of Appeals.
Tatro defended the statements as satire, claiming that her Facebook “friends” understood her literary references and sense of humor. That’s the rub with Facebook…satire is not always apparent, and not everyone can appreciate satirical references. Moreover, your Facebook posts are not just shared with your “friends” when your “friends” print them out and show them to others. You certainly cannot be sure that people outside your circle of friends will understand a perverse sense of humor. Indeed, several faculty members expressed personal concerns about whether the posts were directed toward them, especially Tatro’s statement about wanting “to stab a certain someone in the throat with a trocar.” For explanation, a trocar is a long needle with a sharp end; i.e. it could easily be used as a weapon. The professor of the laboratory class where trocars are used, was “visibly shaking” and very upset” when she saw the posts. Several students also expressed concern about the posts.
The Court concluded that despite Tatro’s explanation for the Facebook posts, the posts were reasonably viewed as threatening by the University. Moreover, they were not private (but rather visible to hundreds of Facebook users, including other students), and the context was not readily apparent, even to those who regularly associated with Tatro. Thus, the Court of Appeals found the evidence supported the determination that Tatro had violated University rules and engaged in threatening conduct, and affirmed the disciplinary action.
From my perspective – I am happy to see that rules, policies and codes of conduct will be enforced by our Courts – particularly when it comes to social media. We have been encouraging and advising clients for years to insure such rules, policies and codes of conduct are in place for just that purpose. Indeed, the Court of Appeals acknowledged that “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” and this must include posts on social media sites. Imagine if the University had ignored the Facebook posts and then Tatro had “stabbed a certain someone in the throat with a trocar”… it seems to me the University was well within its discretion to impose disciplinary action and take the posts seriously.