In preparing for an upcoming social-media seminar, I was reviewing my always-expanding research file of cases that address social media in employment law. It’s a challenge to keep up with all of the new case law as it is decided so it’s a rarity that I re-read opinions. But, when I do, I almost always stumble across a jewel or two that I didn’t notice in the first (or second) reading.
One such case is Spanierman v. Hughes, which was one of the earliest cases involving what I now call a “Facebook firing.” The case, decided in 2008, was decided pre-Facebook, though, so the social-media site in question was MySpace.
The case was an important one for public-sector employers, upholding the decision to terminate a teacher who posted unprofessional content on his MySpace page and used his account to communicate even less professional and sometimes inappropriate messages with his students. The teacher brought his suit under the First Amendment, arguing that the content and messages constituted protected free speech.
But this time around, I noticed a footnote that I’d not caught in my first readings of the case. Specifically, the court took judicial notice of some abbreviations that are now part of our everyday vernacular. The court also takes judicial notice of the definition of an “emoticon” and even provides some examples!
Judicial notice, if you’re not familiar with the term, is a way for the court to accept as true a fact that is not in the record but that is not subject to dispute. For example, a court could take judicial notice of the distance between two locations by referencing a map (or, in today’s world, MapQuest, I suppose). Here’s the text of the footnote, in case any lawyers who are reading someday want to cite a case as support for what “LOL” and “LMAO” stand for:
The court has not altered the contents of this or any other exchange taken from the Plaintiff’s MySpace profile page. The court takes notice that spelling and grammatical rules are not always closely followed in such casual or informal online exchanges, and that oftentimes certain phrases are abbreviated or expressed in a form of shorthand (e.g., “LOL” can mean “laughing out loud,” and “LMAO” can mean “laughing my ass off”). Furthermore, such exchanges often contain so-called “emoticons,” which are symbols used to convey emotional content in written or message form (e.g., “:)” indicates “smile” or “happy,” and “:(” indicates “frown” or “sad”).
A more recent decision in which it appears that the judge took judicial notice of the existence of an entire Facebook page was reported on the Bow Tie Law Blog. That decision has far greater legal significance but it’s not quite as much fun as the “LMAO footnote” discussed above. At least that’s IMHO. ;o)
Spanierman v. Hughes, 576 F. Supp. 2d 292, 312-313, n.13 (D. Conn. 2008).